FIRST DIVISION

[G.R. No. 142396. February 11, 2003]

KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION
VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also
known as the Dangerous Drugs Act of 1972, was filed against petitioner Khosrow Minucher and one Abbas Torabian
with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a buy-bust operation
conducted by the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a quantity of
heroin, a prohibited drug, was said to have been seized. The narcotic agents were accompanied by private respondent
Arthur Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08 January
1988, Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch
19, of Manila for damages on account of what he claimed to have been trumped-up charges of drug trafficking made
by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the
University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attach
for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by
Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the Philippines. He
headed the Iranian National Resistance Movement in the Philippines.

He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him by
a certain Jose Iigo, an informer of the Intelligence Unit of the military. Jose Iigo, on the other hand, was met by
plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the
anti-Khomeini movement in the Philippines.

During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iigo, the defendant
expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and paid
P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and other Iranian products was his
business after the Khomeini government cut his pension of over $3,000.00 per month. During their introduction in
that meeting, the defendant gave the plaintiff his calling card, which showed that he is working at the US Embassy
in the Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of the United
States, and gave his address as US Embassy, Manila. At the back of the card appears a telephone number in
defendants own handwriting, the number of which he can also be contacted.

It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife
of a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00
per visa. Their conversation, however, was more concentrated on politics, carpets and caviar. Thereafter, the
defendant promised to see plaintiff again.

On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at
Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that the
defendant was not yet there, he requested the restaurant people to x x x place the same in the refrigerator. Defendant,
however, came and plaintiff gave him the caviar for which he was paid. Then their conversation was again focused
on politics and business.

On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The
defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at
$24,000.00. For the reason that defendant did not yet have the money, they agreed that defendant would come back
the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff, and
the latter, in turn, gave him the pair of carpets.

At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly
proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing
chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the
latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines
very soon and requested him to come out of the house for a while so that he can introduce him to his cousin waiting
in a cab. Without much ado, and without putting on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of the
cab with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans,
all armed. He was handcuffed and after about 20 minutes in the street, he was brought inside the house by the
defendant. He was made to sit down while in handcuffs while the defendant was inside his bedroom. The defendant
came out of the bedroom and out from defendant's attach case, he took something and placed it on the table in front
of the plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house and likewise
arrested Torabian, who was playing chess with him in the bedroom and both were handcuffed together. Plaintiff was
not told why he was being handcuffed and why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his telephone was unplugged. He asked for any warrant,
but the defendant told him to `shut up.He was nevertheless told that he would be able to call for his lawyer who can
defend him.

The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe was
opened where he kept the $24,000.00 the defendant paid for the carpets and another $8,000.00 which he also placed
in the safe together with a bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He also discovered
missing upon his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a painting he bought for
P30,000.00 together with his TV and betamax sets. He claimed that when he was handcuffed, the defendant took his
keys from his wallet. There was, therefore, nothing left in his house.

That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers,
particularly in Australia, America, Central Asia and in the Philippines. He was identified in the papers as an
international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in
America and in Germany. His friends in said places informed him that they saw him on TV with said news.

After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they
were detained for three days without food and water." [1]

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for
extension of time to file an answer pending a supposed advice from the United States Department of State and
Department of Justice on the defenses to be raised. The trial court granted the motion. On 27 October 1988, Scalzo
filed another special appearance to quash the summons on the ground that he, not being a resident of the Philippines
and the action being one in personam, was beyond the processes of the court. The motion was denied by the court, in
its order of 13 December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer to
the complaint was a voluntary appearance equivalent to service of summons which could likewise be construed a
waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration of the court order, contending
that a motion for an extension of time to file an answer was not a voluntary appearance equivalent to service of
summons since it did not seek an affirmative relief. Scalzo argued that in cases involving the United States
government, as well as its agencies and officials, a motion for extension was peculiarly unavoidable due to the need
(1) for both the Department of State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo denied the motion
for reconsideration in its order of 15 October 1989.
 Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the
denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of the trial
court. Scalzo then elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173, to this
Court. The petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the Court
added, Scalzo had failed to show that the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for
his failure to file a responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12 March
1990, Scalzo filed a motion to set aside the order of default and to admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint
and raised the affirmative defenses (a) of Minuchers failure to state a cause of action in his complaint and (b) that
Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement
Administration of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer
for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to
dismiss the complaint on the ground that, being a special agent of the United States Drug Enforcement Administration,
he was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the United States
Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its
original. In an order of 25 June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257
and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-
45691 be ordered dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505,
per this Courts resolution of 07 August 1990. On 31 October 1990, the Court of Appeals promulgated its decision
sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him. Minucher filed
a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable
Court of Appeals, et. al. (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a decision,
dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision
of the appellate court and remanded the case to the lower court for trial. The remand was ordered on the theses (a) that
the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his person without
even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint contained
sufficient allegations to the effect that Scalzo committed the imputed acts in his personal capacity and outside the
scope of his official duties and, absent any evidence to the contrary, the issue on Scalzos diplomatic immunity could
not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a
decision; it adjudged:

WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who
successfully established his claim by sufficient evidence, against the defendant in the manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus
costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to
answer for the unpaid docket fees considering that the plaintiff in this case instituted this action as a pauper
litigant."[2]

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a
diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable for the acts
complained of committed outside his official duties. On appeal, the Court of Appeals reversed the decision of the trial
court and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his term
of duty and thereby immune from the criminal and civil jurisdiction of the Receiving State pursuant to the terms of
the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the
doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No. 97765, should have
precluded the Court of Appeals from resolving the appeal to it in an entirely different manner, and (2) whether or not
Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of
the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of the court that renders
it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter and causes of action. [3] Even while one
of the issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred in ruling that
private respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna Convention on
Diplomatic Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however,
has not resolved that point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary evidence consisting of DEA records on his investigation
and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his
right to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the
barren self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair
resolution of the issue of diplomatic immunity." [4]

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory,
grants him absolute immunity from suit, describing his functions as an agent of the United States Drugs Enforcement
Agency as conducting surveillance operations on suspected drug dealers in the Philippines believed to be the source
of prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then) would inform the
Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial court a number of documents
-

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs, dated 27
June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs, through
Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court. [5]

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the
Executive Department of the Philippine Government that Scalzo was a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August
1988; (2) that the United States Government was firm from the very beginning in asserting the diplomatic immunity
of Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and
(3) that the United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to
inform the trial court of Scalzos diplomatic immunity. The other documentary exhibits were presented to indicate that:
(1) the Philippine government itself, through its Executive Department, recognizing and respecting the diplomatic
status of Scalzo, formally advised the Judicial Department of his diplomatic status and his entitlement to all diplomatic
privileges and immunities under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of investigation
on the surveillance and subsequent arrest of Minucher, the certification of the Drug Enforcement Administration of
the United States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times relevant
to the complaint, and the special power of attorney executed by him in favor of his previous counsel [6] to show (a) that
the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on
10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law enforcement officials and in the
exercise of his functions as member of the mission, he investigated Minucher for alleged trafficking in a prohibited
drug, and (c) that the Philippine Department of Foreign Affairs itself recognized that Scalzo during his tour of duty in
the Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant Attach of the United States
diplomatic mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12,
Scalzo described the functions of the overseas office of the United States Drugs Enforcement Agency, i.e., (1) to
provide criminal investigative expertise and assistance to foreign law enforcement agencies on narcotic and drug
control programs upon the request of the host country, 2) to establish and maintain liaison with the host country and
counterpart foreign law enforcement officials, and 3) to conduct complex criminal investigations involving
international criminal conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the
time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states of ancient
Greece, among the peoples of the Mediterranean before the establishment of the Roman Empire, and among the states
of India, the person of the herald in time of war and the person of the diplomatic envoy in time of peace were
universally held sacrosanct.[7] By the end of the 16th century, when the earliest treatises on diplomatic law were
published, the inviolability of ambassadors was firmly established as a rule of customary international
law.[8] Traditionally, the exercise of diplomatic intercourse among states was undertaken by the head of state himself,
as being the preeminent embodiment of the state he represented, and the foreign secretary, the official usually entrusted
with the external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the
receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the
functions of the diplomatic mission involve, by and large, the representation of the interests of the sending state and
promoting friendly relations with the receiving state. [9]
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors
or nuncios accredited to the heads of state,[10] (b) envoys,[11] ministers or internuncios accredited to the heads of states;
and (c) charges d' affairs[12] accredited to the ministers of foreign affairs.[13] Comprising the "staff of the (diplomatic)
mission" are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of
missions, as well as members of the diplomatic staff, excluding the members of the administrative, technical and
service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations
provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the
same be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of
missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might
bear stressing that even consuls, who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political
matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the
determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits 9 to 13, that he was an Assistant Attach of the United States
diplomatic mission and was accredited as such by the Philippine Government. An attach belongs to a category of
officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial
affairs. There could also be a class of attaches belonging to certain ministries or departments of the government, other
than the foreign ministry or department, who are detailed by their respective ministries or departments with the
embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the
like. Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to
observe, analyze and interpret trends and developments in their respective fields in the host country and submit reports
to their own ministries or departments in the home government. [14] These officials are not generally regarded as
members of the diplomatic mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all
issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The presentation
did nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing
Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the diplomatic note, the
private respondent is clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his
person.

xxxxxxxxx

And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the moment
the issue of authenticity raised by the petitioner and the doubts that surround such claim, in view of the fact that it
took private respondent one (1) year, eight (8) months and seventeen (17) days from the time his counsel filed on 12
September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer because the
Departments of State and Justice of the United States of America were studying the case for the purpose of
determining his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even
granting for the sake of argument that such note is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.

xxxxxxxxx

"There is of course the claim of private respondent that the acts imputed to him were done in his official
capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note.x x x. The public
respondent then should have sustained the trial court's denial of the motion to dismiss. Verily, it should have been
the most proper and appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic Note
whose belated issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which
respondent Court yielded to the private respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of
Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary, certifying
that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in the
Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant Attach of the United States
diplomatic mission and was, therefore, accredited diplomatic status by the Government of the Philippines." No
certified true copy of such "records," the supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino,[15] the Court has recognized that, in such matters, the hands of
the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed to
gain exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically its
Department of Foreign Affairs, to be most circumspect, that should particularly be no less than compelling, in its post
litem motam issuances. It might be recalled that the privilege is not an immunity from the observance of the law of
the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.[16] The government of the United States itself, which Scalzo claims to be acting for, has formulated its
standards for recognition of a diplomatic agent. The State Department policy is to only concede diplomatic status to
a person who possesses an acknowledged diplomatic title and performs duties of diplomatic
nature.[17] Supplementary criteria for accreditation are the possession of a valid diplomatic passport or, from States
which do not issue such passports, a diplomatic note formally representing the intention to assign the person to
diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic
functions on an essentially full-time basis.[18] Diplomatic missions are requested to provide the most accurate and
descriptive job title to that which currently applies to the duties performed. The Office of the Protocol would then
assign each individual to the appropriate functional category. [19]
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that,
indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of
suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur
Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the present
controversy could then be resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit [20] and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity. [21] If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium
- that all states are sovereign equals and cannot assert jurisdiction over one another.[22] The implication, in broad terms,
is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be
regarded as being against the state itself, although it has not been formally impleaded.[23]
In United States of America vs. Guinto,[24] involving officers of the United States Air Force and special officers
of the Air Force Office of Special Investigators charged with the duty of preventing the distribution, possession and
use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. x x x. It cannot for a moment be imagined that they were acting in their private or unofficial capacity
when they apprehended and later testified against the complainant. It follows that for discharging their duties as
agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued. x x x As they have acted on behalf of the government, and within the scope of their
authority, it is that government, and not the petitioners personally, [who were] responsible for their acts." [25]

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals[26] elaborates:

It is a different matter where the public official is made to account in his capacity as such for acts contrary to law
and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights,
is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said
that an action at law or suit in equity against a State officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

xxxxxxxxx

(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued
in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents
of the government is removed the moment they are sued in their individual capacity. This situation usually arises
where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle
of law that a public official may be liable in his personal private capacity for whatever damage he may have caused
by his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction.[27]
 A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can
be established that he is acting within the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers and
personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement between the governments of the Philippines
and of the United States (for the latter to send its agents and to conduct surveillance and related activities of suspected
drug dealers in the Philippines), the consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The
official exchanges of communication between agencies of the government of the two countries, certifications from
officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the buy-bust operation conducted at the residence
of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give
enough indication that the Philippine government has given its imprimatur, if not consent, to the activities within
Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has
tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform local
law enforcers who would then be expected to make the arrest. In conducting surveillance activities on Minucher, later
acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case
against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the
problem on the drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.
 FIRST DIVISION

[G.R. No. 125865. January 28, 2000]

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly
uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial
Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos.
53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioners bail at
P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next day,
the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that
petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the
Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based on
the said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the
prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by
the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the
Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce
the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner elevated the case to
this Court via a petition for review arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in court.

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered
by any immunity. The DFAs determination that a certain person is covered by immunity is only preliminary which
has no binding effect in courts. In receiving ex-parte the DFAs advice and in motu proprio dismissing the two
criminal cases without notice to the prosecution, the latters right to due process was violated. It should be noted that
due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity
petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to
be presented at the proper time.[1] At any rate, it has been ruled that the mere invocation of the immunity clause does
not ipso facto result in the dropping of the charges.[2]

Second, under Section 45 of the Agreement which provides:

"Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.).......immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity."

the immunity mentioned therein is not absolute, but subject to the exception that the act was done in "official
capacity." It is therefore necessary to determine if petitioners case falls within the ambit of Section 45(a). Thus, the
prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to
present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow
the commission of a crime, such as defamation, in the name of official duty. [3]The imputation of theft is ultra
vires and cannot be part of official functions. It is well-settled principle of law that a public official may be liable in
his personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or
beyond the scope of his authority or jurisdiction.[4] It appears that even the governments chief legal counsel, the
Solicitor General, does not support the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such,
enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official
functions.[5] As already mentioned above, the commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that preliminary
investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar. [6] Being purely a
statutory right, preliminary investigation may be invoked only when specifically granted by law. [7] The rule on
criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the
MeTC.[8] Besides, the absence of preliminary investigation does not affect the courts jurisdiction nor does it impair
the validity of the information or otherwise render it defective. [9]

WHEREFORE, the petition is DENIED.

SO ORDERED.
 THIRD DIVISION
[G.R. No. 111709. August 30, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN, VIRGILIO I. LOYOLA,
CECILIO O. CHANGCO, ANDRES C. INFANTE, CHEONG SAN HIONG, and JOHN
DOES, accused-appellants.

DECISION
MELO, J.:

This is one of the older cases which unfortunately has remained in docket of the Court for sometime. It was
reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-03-SC dated
February 27, 2001.
In the evening of March 2, 1991, M/T Tabangao, a cargo vessel owned by the PNOC Shipping and Transport
Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and 40,000 barrels of diesel oil,
with a total value of P40,426,793,87. was sailing off the coast of Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate Christian Torralba,
and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum ladder, by seven fully armed pirates
led by Emilio Changco, older brother of accused-appellant Cecilio Changco. The pirates, including accused-appellants
Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained
the crew and took complete control of the vessel. Thereafter, accused-appellant Loyola ordered three crew members
to paint over, using black paint, the name "M/T Tabangao" on the front and rear portions of the vessel, as well as the
PNOC logo on the chimney of the vessel. The vessel was then painted with the name "Galilee," with registry at San
Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading radio messages to
PNOC that the ship was undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the Philippine Coast
Guard and secured the assistance of the Philippine Air Force and the Philippine Navy. However, search and rescue
operations yielded negative results. On March 9, 1991, the ship arrived in the vicinity of Singapore and cruised around
the area presumably to await another vessel which, however, failed to arrive. The pirates were thus forced to return to
the Philippines on March 14, 1991, arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles from
Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio Changco ordered the crew
of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride". Accused-appellant Cheong San Hiong
supervised the crew of "Navi Pride" in receiving the cargo. The transfer, after an interruption, with both vessels leaving
the area, was completed on March 30,1991.
On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo to "Navi
Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea. On April 10,
1991, the members of the crew were released in three batches with the stern warning not to report the incident to
government authorities for a period of two days or until April 12, 1991, otherwise they would be killed. The first batch
was fetched from the shoreline by a newly painted passenger jeep driven by accused-appellant Cecilio Changco,
brother of Emilio Changco, who brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of the
crew in proceeding to their respective homes. The second batch was fetched by accused-appellant Changco at midnight
of April 10, 1991 and were brought to different places in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC Shipping
and Transport Corporation office to report the incident. The crew members were brought to the Coast Guard Office
for investigation. The incident was also reported to the National Bureau of Investigation where the officers and
members of the crew executed sworn statements regarding the incident.
A series of arrests was thereafter effected as follows:
 a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K. Beach, Balibago,
Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin was arrested and brought to the NBI
headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI agents as
the latter were pursuing the mastermind, who managed to evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha Hotel in
Batangas City.
On October 24 1991, an Information charging qualified piracy or violation of Presidential Decree No. 532 (piracy
in Philippine Waters) was filed against accused-appellants, as follows:

The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO,
ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN DOES of qualified piracy
(Violation of P.D. No. 532), committed as follows:

That on or about and during the period from March 2 to April 10, 1991, both dates inclusive, and for sometime prior
and subsequent thereto, and within the jurisdiction of this Honorable Court, the said accused, then manning a motor
launch and armed with high powered guns, conspiring and confederating together and mutually helping one another,
did then and there, wilfully, unlawfully and feloniously fire upon, board and seize while in the Philippine waters
M/T PNOC TABANGCO loaded with petroleum products, together with the complement and crew members,
employing violence against or intimidation of persons or force upon things, then direct the vessel to proceed to
Singapore where the cargoes were unloaded and thereafter returned to the Philippines on April 10, 1991, in violation
of the aforesaid law.

CONTRARY TO LAW.

(pp. 119-20, Rollo.)

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of the National
Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants pleaded not guilty to the charge.
Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their testimony as
to where they were on March 1, 1991, maintained the defense of denial, and disputed the charge, as well as the transfer
of any cargo from "M/T Tabangao" to the "Navi Pride." All of them claimed having their own respective sources of
livelihood. Their story is to the effect that on March 2, 1991, while they were conversing by the beach, a red speedboat
with Captain Edilberto Liboon and Second Mate Christian Torralba on board, approached the seashore. Captain
Liboon inquired from the three if they wanted to work in a vessel. They were told that the work was light and that
each worker was to be paid P3,000.00 a month with additional compensation if they worked beyond that period. They
agreed even though they had no sea-going experience. On board, they cooked, cleaned the vessel, prepared coffee,
and ran errands for the officers. They denied having gone to Singapore, claiming that the vessel only went to Batangas.
Upon arrival thereat in the morning of March 21, 1991, they were paid P1,000.00 each as salary for nineteen days of
work, and were told that the balance would be remitted to their addresses. There was neither receipt nor contracts of
employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping on April 10,
1991. He testified that he is the younger brother of Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he studied in Sydney,
Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as a "Master" of a vessel,
working as such for two years on board a vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port Captain.
The company was engaged in the business of trading petroleum, including shipoil, bunker lube oil, and petroleum to
domestic and international markets. It owned four vessels, one of which was "Navi Pride."
 On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts, Hiong's name
was listed in the company's letter to the Mercantile Section of the Maritime Department of the Singapore government
as the radio telephone operator on board the vessel "Ching Ma."
The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to sell to the
former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid over one-half of the
aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations Superintendent of the firm, proceeded
to the high seas on board "Navi Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on board the
vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the port of Singapore, the contact
vessel to be designated by Paul Gan. Hiong was ordered to ascertain the quantity and quality of the oil and was given
the amount of 300,000.00 Singapore Dollars for the purchase. Hiong, together with Paul Gan, and the surveyor
William Yao, on board "Navi Pride" sailed toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee"
would be making the transfer. Although no inspection of "Navi Pride" was made by the port authorities before
departure, Navi Marine Services, Pte., Ltd. was able to procure a port clearance upon submission of General
Declaration and crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and did not pass
through the immigration. The General Declaration falsely reflected that the vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the Captain of
the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and the surveyor William Yao
met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned out to be Emilio Changco). Hiong claimed
that he did not ask for the full name of Changco nor did he ask for the latter's personal card.
Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took samples of
the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under the name "Roberto Castillo."
Hiong then handed the payment to Paul Gan and William Yao. Upon arrival at Singapore in the morning of March
29, 1991, Hiong reported the quantity and quality of the cargo to the company.
Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from "M/T Galilee"
to "Navi Pride." The same procedure as in the first transfer was observed. This time, Hiong was told that that there
were food and drinks, including beer, purchased by the company for the crew of "M/T Galilee. The transfer took ten
hours and was completed on March 30, 1991. Paul Gan was paid in full for the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to offer its
cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the cargo in Singapore. Hiong
went to the Philippines to discuss the matter with Emilio Changco, who laid out the details of the new transfer, this
time with "M/T Polaris" as contact vessel. Hiong was told that the vessel was scheduled to arrive at the port of Batangas
that weekend. After being billeted at Alpha Hotel in Batangas City, where Hiong checked in under the name "SONNY
CSH." A person by the name of "KEVIN OCAMPO," who later turned out to be Emilio Changco himself, also checked
in at Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out that the vessel was not arriving. Hiong
was thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The dispositive
portion of said decision reads:

WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by this Court finding the
accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond reasonable doubt, as
principals, of the crime of piracy in Philippine Waters defined in Section 2(d) of Presidential Decree No. 532 and the
accused Cheong San Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death. However, considering that, under the 1987 Constitution, the Court
cannot impose the death penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, ]r., and Cecilio Changco
are hereby each meted the penalty of RECLUSION PERPETUA, with all the accessory penalties of the law. The
accused Cheong San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of the
Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante,
Jr. and Cecilio Changco are hereby ordered to return to the PNOC Shipping and Transport Corporation the "M/T
Tabangao" or if the accused can no longer return the same, the said accused are hereby ordered to remit, jointly and
severally, to said corporation the value thereof in the amount of P11,240,000.00 Philippine Currency, with interests
thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is paid in full. All the accused
including Cheong San Hiong are hereby ordered to return to the Caltex Philippines, Inc. the cargo of the "M/T
Tabangao", or if the accused can no longer return the said cargo to said corporation, all the accused are hereby
condemned to pay, jointly and severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of
P40,426,793.87, Philippine Currency plus interests until said amount is paid in full. After the accused Cheong San
Hiong has served his sentence, he shall be deported to Singapore.

All the accused shall be credited for the full period of their detention at the National Bureau of Investigation and the
City Jail of Manila during the pendency of this case provided that they agreed in writing to abide by and comply
strictly with the rules and regulations of the City Jail of Manila and the National Bureau of Investigation. With costs
against all the accused.

SO ORDERED.

(pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accused-appellants may be summarized as follows:

Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O. Changco

Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in allowing
them to adopt the proceedings taken during the time they were being represented by Mr. Tomas Posadas, a non-lawyer,
thereby depriving them of their constitutional right to procedural due process.
In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel for all of them.
However, in the course of the proceedings, or on February 11, 1992, the trial court discovered that Mr. Posadas was
not a member of the Philippine Bar. This was after Mr. Posadas had presented and examined seven witnesses for the
accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the custodial
investigation, they were subjected to physical violence; were forced to sign statements without being given the
opportunity to read the contents of the same; were denied assistance of counsel, and were not informed of their rights,
in violation of their constitutional rights,
Said accused-appellants also argue that the trial court erred in finding that the prosecution proved beyond
reasonable doubt that they committed the crime of qualified piracy. They allege that the pirates were outnumbered by
the crew who totaled 22 and who were not guarded at all times. The crew, so these accused-appellants conclude, could
have overpowered the alleged pirates.

Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed by him;
(2) the trial court erred in declaring that the burden is lodged on him to prove by clear and convincing evidence that
he had no knowledge that Emilio Changco and his cohorts attacked and seized the "M/T Tabangao" and/or that the
cargo of the vessel was stolen or the subject of theft or robbery or piracy; (3) the trial court erred in finding him guilty
as an accomplice to the crime of qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and
Anti-Robbery Law of 1974); (4) the trial court erred in convicting and punishing him as an accomplice when the acts
allegedly committed by him were done or executed outside of Philippine waters and territory, stripping the Philippine
courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court erred in making factual
conclusions without evidence on record to prove the same and which in fact are contrary to the evidence adduced
during trial; (6) the trial court erred in convicting him as an accomplice under Section 4 of Presidential Decree No.
532 when he was charged as a principal by direct participation under said decree, thus violating his constitutional right
to be informed of the nature and cause of the accusation against him.
Cheong also posits that the evidence against the other accused-appellants do not prove any participation on his
part in the commission of the crime of qualified piracy. He further argues that he had not in any way participated in
the seajacking of "M/T Tabangao" and in committing the crime of qualified piracy, and that he was not aware that the
vessel and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the information with qualified piracy as
principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters. In the case at bar, he argues
that he was convicted for acts done outside Philippine waters or territory. For the State to have criminal jurisdiction,
the act must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1) what are the legal effects and implications of
the fact that a non-lawyer represented accused-appellants during the trial?; (2) what are the legal effects and
implications of the absence of counsel during the custodial investigation?; (3) did the trial court err in finding that the
prosecution was able to prove beyond reasonable doubt that accused-appellants committed the crime of qualified
piracy?; (4) did Republic Act No. 7659 obliterate the crime committed by accused-appellant Cheong?; and (5) can
accused-appellant Cheong be convicted as accomplice when he was not charged as such and when the acts allegedly
committed by him were done or executed outside Philippine waters and territory?
On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by accused-
appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were adopting the evidence
adduced when they were represented by a non-lawyer. Such waiver of the right to sufficient representation during the
trial as covered by the due process clause shall only be valid if made with the full assistance of a bona fide lawyer.
During the trial, accused-appellants, as represented by Atty. Abdul Basar, made a categorical manifestation that said
accused-appellants were apprised of the nature and legal consequences of the subject manifestation, and that they
voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents when asked in open
court (tsn, February 11, 1992, pp. 7-59). It is true that an accused person shall be entitled to be present and to defend
himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment
(Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not versed on
the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary
to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by
law." (Article 6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the
accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly
protect his rights without the assistance of counsel." By analogy , but without prejudice to the sanctions imposed by
law for the illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly
protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical
rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation during the
trial, considering that it was unequivocally, knowingly, and intelligently made and with the full assistance of a bona
fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked where a valid
waiver of rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial investigation may not be waived except
in writing and in the presence of counsel.
Section 12, Article III of the Constitution reads:

SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used
against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence
against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their families.

Such rights originated from Miranda v. Arizona (384 U. S. 436 [1966]) which gave birth to the so-called Miranda
doctrine which is to the effect that prior to any questioning during custodial investigation, the person must be warned
that he has a right to remain silent, that any statement he gives may be used as evidence against him, and that he has
the right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds the more
stringent requirement that the waiver must be in writing and made in the presence of counsel.
Saliently, the absence of counsel during the execution of the so-called confessions of the accused-appellants
make them invalid. In fact, the very basic reading of the Miranda rights was not even shown in the case at bar.
Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from the poisonous tree doctrine," a phrase
minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]).
According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary
or derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based on the principle that evidence
illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained
evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case,
the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver of the right to counsel, are
inadmissible and whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence
against them.
However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to convict
accused-appellants with moral certainty. We agree with the sound deduction of the trial court that indeed, Emilio
Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, .and Infante, Jr. did conspire and confederate
to commit the crime charged. In the words of then trial judge, now Justice Romeo J. Callejo of the Court of Appeals
-

...The Prosecution presented to the Court an array of witnesses, officers and members of the crew of the "M/T
Tabangao" no less, who identified and pointed to the said Accused as among those who attacked and seized, the
"M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off Lubang Island, Mindoro, with its
cargo, and brought the said vessel, with its cargo, and the officers and crew of the vessel, in the vicinity of
Horsebough Lighthouse, about sixty-six nautical miles off the shoreline of Singapore and sold its cargo to the
Accused Cheong San Hiong upon which the cargo was discharged from the "M/T Tabangao" to the "Navi Pride" for
the price of about $500,000.00 (American Dollars) on March 29, and 30, 1991...

xxx

xxx

xxx

The Master, the officers and members of the crew of the "M/T Tabangao" were on board the vessel with the
Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more than one (1) month. There can be no
scintilla of doubt in the mind of the Court that the officers and crew of the vessel could and did see and identify the
seajackers and their leader. In fact, immediately after the Accused were taken into custody by the operatives of the
National Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba and Isaias Wervas executed
their "Joint Affidavit" (Exhibit "B") and pointed to and identified the said Accused as some of the pirates.

xxx

xxx
 xxx

Indeed, when they testified before this Court on their defense, the three (3) Accused admitted to the Court that they,
in fact, boarded the said vessel in the evening of March 2 1991 and remained on board when the vessel sailed to its,
destination, which turned out to be off the port of Singapore.

(pp. 106-112, Rollo.)

We also agree with the trial court's finding that accused-appellants' defense of denial is not supported by any
hard evidence but their bare testimony. Greater weight is given to the categorical identification of the accused by the
prosecution witnesses than to the accused's plain denial of participation in the commission of the crime (People v.
Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr. narrated a patently
desperate tale that they were hired by three complete strangers (allegedly Captain Edilberto Liboon, Second Mate
Christian Torralba, and their companion) while said accused-appellants were conversing with one another along the
seashore at Apkaya, Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao" which was then anchored
off-shore. And readily, said accused-appellants agreed to work as cooks and handymen for an indefinite period of time
without even saying goodbye to their families, without even knowing their destination or the details of their voyage,
without the personal effects needed for a long voyage at sea. Such evidence is incredible and clearly not in accord
with human experience. As pointed out by the trial court, it is incredible that Captain Liboon, Second Mate Torralba,
and their companion "had to leave the vessel at 9:30 o'clock in the evening and venture in a completely unfamiliar
place merely to recruit five (5) cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at his place
of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is
fundamentally and inherently a weak defense, much more so when uncorroborated by other witnesses (People v.
Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and concoct, and difficult to disprove. Accused-
appellant must adduce clear and convincing evidence that, at about midnight on April 10, 1991, it was physically
impossible for him to have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable
to prove that he was in his place of work on the dates aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest respect, for
trial courts have an untrammeled opportunity to observe directly the demeanor of witnesses and, thus, to determine
whether a certain witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more persons come
to an agreement concerning the commission of a felony and decide to commit it (Article 8, Revised Penal Code). To
be a conspirator, one need not participate in every detail of execution; he need not even take part in every act or need
not even know the exact part to be performed by the others in the execution of the conspiracy. As noted by the trial
court, there are times when conspirators are assigned separate and different tasks which may appear unrelated to one
another, but in fact, constitute a whole and collective effort to achieve a common criminal design.
We affirm the trial court's finding that Emilio Changco, accused- appellants Tulin, Loyola, and Infante, Jr. and
others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while accused-appellant
Cecilio Changco was to fetch the master and the members of the crew from the shoreline of Calatagan, Batangas after
the transfer, and bring them to Imus, Cavite, and to provide the crew and the officers of the vessel with money for
their fare and food provisions on their way home. These acts had to be well-coordinated. Accused-appellant Cecilio
Changco need not be present at the time of the attack and seizure of "M/T Tabangao" since he performed his task in
view of an objective common to all other accused- appellants.
Of notable importance is the connection of accused-appellants to one another. Accused-appellant Cecilio
Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin Ocampo),
owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said corporation. Their residences are
approximately six or seven kilometers away from each other. Their families are close. Accused-appellant Tulin, on
the other hand, has known Cecilio since their parents were neighbors in Aplaya, Balibago, Calatagan,
Batangas. Accused-appellant Loyola's wife is a relative of the Changco brothers by affinity .Besides, Loyola and
Emilio Changco had both been accused in a seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils
and plates off Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola
at that time remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in Philippine waters
as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential Decree No. 532 because Republic Act
No. 7659 (effective January 1, 1994) which amended Article 122 of the Revised Penal Code, has impliedly superseded
Presidential Decree No. 532. He reasons out that Presidential Decree No. 532 has been rendered "superfluous or
duplicitous" because both Article 122 of the Revised Penal Code, as amended, and Presidential Decree No. 532 punish
piracy committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any person"
mentioned in Section 1 [d] of Presidential Decree No. 532 must be omitted such that Presidential Decree No. 532 shall
only apply to offenders who are members of the complement or to passengers of the vessel, whereas Republic Act
No. 7659 shall apply to offenders who are neither members of the complement or passengers of the vessel, hence,
excluding him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:

Article 122. Piracy in general and mutiny on the high seas. -The penalty of reclusion temporal shall be inflicted upon
any person who, on the high seas, shall attack or seize a vessel or, not being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its
complement or passengers.

(Underscoring supplied.)

Article 122, as amended by Republic Act No. 7659 January 1, 1994), reads:

Article 122. Piracy in general and mutiny on the high seas or in Philippine waters. -The penalty of reclusion
perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, shall attack or seize a
vessel or, being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said
vessel, its equipment, or personal belongings of its complement or passengers.

(Underscoring ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SEC. 2. Definition of Terms. - The following shall mean and be understood, as follows:

d. Piracy. -Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo,
equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means
of violence against or intimidation of persons or force upon things, committed by any person. including a passenger
or member of the complement of said vessel in Philippine waters, shall be considered as piracy. The offenders shall
be considered as pirates and punished as hereinafter provided (underscoring supplied).

To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy must be
committed on the high seas by any person not a member of its complement nor a passenger thereof. Upon its
amendment by Republic Act No. 7659, the coverage of the pertinent provision was widened to include offenses
committed "in Philippine waters." On the other hand, under Presidential Decree No. 532 (issued in 1974), the coverage
of the law on piracy embraces any person including "a passenger or member of the complement of said vessel in
Philippine waters." Hence, passenger or not, a member of the complement or not, any person is covered by the law.
Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential Decree No.
532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to
construe or interpret the law. All the presidential decree did was to widen the coverage of the law, in keeping with the
intent to protect the citizenry as well as neighboring states from crimes against the law of nations. As expressed in one
of the "whereas" clauses of Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned
by the penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy under
Presidential Decree No. 532 exist harmoniously as separate laws.
As regards the contention that the trial court did not acquire jurisdiction over the person of accused-appellant
Hiong since the crime was committed outside Philippine waters, suffice it to state that unquestionably, the attack on
and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and its cargo were committed in Philippine
waters, although the captive vessel was later brought by the pirates to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was done under accused-appellant Hiong's direct supervision. Although
Presidential Decree No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine
waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the
same need not be committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to
the rule on territoriality in criminal law. The same principle applies even if Hiong, in the instant case, were charged,
not with a violation of qualified piracy under the penal code but under a special law, Presidential Decree No. 532
which penalizes piracy in Philippine waters.Verily, Presidential Decree No. 532 should be applied with more force
here since its purpose is precisely to discourage and prevent piracy in Philippine waters (People v. Catantan, 278
SCRA 761 [1997]). It is likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible
crime against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).
However, does this constitute a violation of accused-appellant's constitutional right to be informed of the nature
and cause of the accusation against him on the ground that he was convicted as an accomplice under Section 4 of
Presidential Decree No. 532 even though he was charged as a principal by direct participation under Section 2 of said
law?
The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao" and its cargo;
(b) that he induced Emilio Changco and his group in the attack and seizure of "M/T Tabangao" and its cargo; ( c) and
that his act was indispensable in the attack on and seizure of "M/T Tabangao" and its cargo. Nevertheless, the trial
court found that accused-appellant Hiong's participation was indisputably one which aided or abetted Emilio Changco
and his band of pirates in the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which
provides:

SEC. 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery brigandage. -Any person
who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them
information about the movement of police or other peace officers of the government, or acquires or receives
property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an
accomplice of the principal officers and be punished in accordance with Rules prescribed by the Revised Penal
Code.

It shall be presumed that any person who does any of the acts provided in this Section has performed them
knowingly, unless the contrary is proven.

The ruling of the trial court is Within well-settle jurisprudence that if there is lack of complete evidence of
conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]). Any
doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser
responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v.
Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No 532 which presumes
that any person who does any of the acts provided in said section has performed them knowingly, unless the contrary
is proven. In the case at bar, accused-appellant Hiong had failed to overcome the legal presumption that he knowingly
abetted or aided in the commission of piracy, received property taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo by personally
directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying the hijacked cargo for
Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the quality and verified the quantity of
the petroleum products, connived with Navi Marine Services personnel in falsifying the General Declarations and
Crew List to ensure that the illegal transfer went through, undetected by Singapore Port Authorities, and supplied the
pirates with food, beer, and other provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was
accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the execution of their
scheme to avert detection by Singapore Port Authorities. Hence, had accused-appellant Hiong not falsified said entries,
the Singapore Port Authorities could have easily discovered the illegal activities that took place and this would have
resulted in his arrest and prosecution in Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to
"Navi Pride" could not have been effected.
We completely uphold the factual findings of the trial court showing in detail accused-appellant Hiong's role in
the disposition of the pirated goods summarized as follows: that on March 27, 1991, Hiong with Captain Biddy Santos
boarded the "Navi Pride," one of the vessels of the Navi Marine, to rendezvous with the "M/T Galilee"; that the firm
submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the name of Hiong;
that the "General Declaration" (for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH"
and "8-A CSH", Record) falsely stated that the vessel was scheduled to depart at 2200 (10 o'clock in the evening), that
there were no passengers on board, and the purpose of the voyage was for "cargo operation" and that the vessel was
to unload and transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee" with' Emilio Changco
a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared the "Quantity Certificate" (Exhibit
"11-C CSH, Record) stating that the cargo transferred to the "Navi Pride" was 2,406 gross cubic meters; that although
Hiong was not the Master of the vessel, he affixed his signature on the "Certificate" above the word "Master" (Exhibit
"11-C-2 CSH", Record); that he then paid $150,000.00 but did not require any receipt for the amount; that Emilio
Changco also did not issue one; and that in the requisite "General Declaration" upon its arrival at Singapore on March
29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear that the
"Navi Pride" unloaded 1,700 tons of cargo on the high seas during said voyage when in fact it acquired from the "M/T
Galilee" 2,000 metric tons of diesel oil. The second transfer transpired with the same irregularities as discussed above.
It was likewise supervised by accused- appellant Cheong from his end while Emilio Changco supervised the transfer
from his end.
Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that he has no
knowledge of the illegality of the source of the cargo.
First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the cargo since
he himself received the same from "M/T Tabangao". Second, considering that he is a highly educated mariner, he
should have avoided any participation in the cargo transfer given the very suspicious circumstances under which it
was acquired. He failed to show a single piece of deed or bill of sale or even a purchase order or any contract of sale
for the purchase by the firm; he never bothered to ask for and scrutinize the papers and documentation relative to the
"M/T Galilee"; he did not even verify the identity of Captain Robert Castillo whom he met for the first time nor did
he check the source of the cargo; he knew that the transfer took place 66 nautical miles off Singapore in the dead of
the night which a marine vessel of his firm did not ordinarily do; it was also the first time Navi Marine transacted with
Paul Gan involving a large sum of money without any receipt issued therefor; he was not even aware if Paul Gan was
a Singaporean national and thus safe to deal with. It should also be noted that the value of the cargo was
P40,426,793.87 or roughly more than US$l,000,000.00 (computed at P30.00 to $1, the exchange rate at that time).
Manifestly, the cargo was sold for less than one-half of its value. Accused-appellant Hiong should have been aware
of this irregularity. Nobody in his right mind would go to far away Singapore, spend much time and money for
transportation -only to sell at the aforestated price if it were legitimate sale involved. This, in addition to the act of
falsifying records, clearly shows that accused-appellant Hiong was well aware that the cargo that his firm was
acquiring was purloined.
Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his superiors." An
individual is justified in performing an act in obedience to an order issued by a superior if such order, is for some
lawful purpose and that the means used by the subordinate to carry out said order is lawful (Reyes, Revised Penal
Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior Chua Kim Leng Timothy, is a patent
violation not only of Philippine, but of international law. Such violation was committed on board a Philippine-operated
vessel. Moreover, the means used by Hiong in carrying out said order was equally unlawful. He misled port and
immigration authorities, falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the trial,
Hiong presented himself, and the trial court was convinced, that he was an intelligent and articulate Port Captain.
These circumstances show that he must have realized the nature and the implications of the order of Chua Kim Leng
Timothy. Thereafter, he could have refused to follow orders to conclude the deal and to effect the transfer of the cargo
to the Navi Pride.He did not do so, for which reason, he must now suffer the consequences of his actions.
WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court
hereby AFFIRMS the judgment of the trial court in toto.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.

DECISION

Tinga, J.:

With another city ordinance of Manila also principally involving the tourist district as subject, the Court is
confronted anew with the incessant clash between government power and individual liberty in tandem with the
archetypal tension between law and morality.

In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the operation of
motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-
motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as
pro-rated or "wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our
sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the
present petition.

This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision3 in
C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774
entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate
Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of
Manila" (the Ordinance).

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. 4 The Ordinance is
reproduced in full, hereunder:

SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best
interest, health and welfare, and the morality of its constituents in general and the youth in particular.

SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels,
lodging houses, pension houses and similar establishments in the City of Manila.

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted
terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the
City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than
twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be
concocted by owners or managers of said establishments but would mean the same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon
conviction thereof be punished by a fine of Five Thousand (₱5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of
[a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party
shall automatically be cancelled.

SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure
or any portion hereof are hereby deemed repealed.

SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.

Enacted by the city Council of Manila at its regular session today, November 10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory
relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO) 5 with the Regional
Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City)
represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of
the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on
a short time basis as well as to charge customers wash up rates for stays of only three hours.

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa
Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-
intervention7 on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels
and motels in Manila.8 The three companies are components of the Anito Group of Companies which owns and
operates several hotels and motels in Metro Manila.9

On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC also notified the Solicitor General of
the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to
withdraw as plaintiff.11

On December 28, 1992, the RTC granted MTDC's motion to withdraw. 12 The RTC issued a TRO on January 14,
1993, directing the City to cease and desist from enforcing the Ordinance. 13 The City filed an Answer dated January
22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14

On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the
enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment arguing
that the Ordinance is constitutional.

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the
case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision declaring the Ordinance
null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and
void.
Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED.17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and jealously guarded
by the Constitution."18 Reference was made to the provisions of the Constitution encouraging private enterprises and
the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by
simply paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate
Appellate Court,19 where the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be
effected through an inter-province ban on the transport of carabaos and carabeef.

The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was docketed as G.R.
No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a petition
for certiorari and referred the petition to the Court of Appeals. 21

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to
Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the
power:

[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns,
pension houses, lodging houses and other similar establishments, including tourist guides and transports. 22

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the
Revised Manila Charter, thus:

"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the
prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the
city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties
conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred
pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.23

Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the
freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive
interference in their business.

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance. 24 First, it
held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the
owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless
reach of police power is only constrained by having a lawful object obtained through a lawful method. The lawful
objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the
establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-
being of its constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of
Manila, liberty is regulated by law.

TC, WLC and STDC come to this Court via petition for review on certiorari. 25 In their petition and Memorandum,
petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed
Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners’ standing. Petitioners allege that as owners of establishments
offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners
also allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter
is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal
protection rights.

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from
the law or action challenged to support that party's participation in the case. More importantly, the doctrine of
standing is built on the principle of separation of powers, 26 sparing as it does unnecessary interference or
invalidation by the judicial branch of the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution.27 The
constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise
definition.28 In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as
well as the standard test for a petitioner's standing.29 In a similar vein, the United States Supreme Court reviewed
and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and
redressability in Allen v. Wright.30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer
suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance. 31

For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are
appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have recognized the right of
litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must
have suffered an ‘injury-in-fact,’ thus giving him or her a "sufficiently concrete interest" in the outcome of the issue
in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third
party's ability to protect his or her own interests." 33 Herein, it is clear that the business interests of the petitioners are
likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which
appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such
special interest groups in our nation such as the American Civil Liberties Union in the United States may also be
construed as a hindrance for customers to bring suit.34

American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or
invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state
action. In Griswold v. Connecticut,35 the United States Supreme Court held that physicians had standing to challenge
a reproductive health statute that would penalize them as accessories as well as to plead the constitutional
protections available to their patients. The Court held that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are
considered in a suit involving those who have this kind of confidential relation to them." 36

An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme Court held
that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a
statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The
United States High Court explained that the vendors had standing "by acting as advocates of the rights of third
parties who seek access to their market or function." 38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of
the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in
effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech,
the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights. 39 In this
case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We
can see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their
establishments for a "wash-rate" time frame.
 III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but
our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of
Manila.40Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal
information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel,
hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful
to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on
motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance
in Ermita-Malate was sustained by the Court.

The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities
covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals
including particular illicit activity in transient lodging establishments. This could be described as the middle case,
wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been
severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate
the lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for
an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and
pass according to the procedure prescribed by law, it must also conform to the following substantive requirements:
(1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.41

The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a
room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local
government units by the Local Government Code through such implements as the general welfare clause.

A.

Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the
conditions warrant.42 Police power is based upon the concept of necessity of the State and its corresponding right to
protect itself and its people.43 Police power has been used as justification for numerous and varied actions by the
State. These range from the regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome
scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nation’s
legal system, its use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit
sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the
ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their
achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal protection
questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they
exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another
form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate
many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third
political branch of government. We derive our respect and good standing in the annals of history by acting as
judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development
of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-
reaching constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article
III of the Constitution. Due process evades a precise definition. 48 The purpose of the guaranty is to prevent arbitrary
governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as
a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty
insofar as their property is concerned.

The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on
government, "procedural due process" and "substantive due process." Procedural due process refers to the
procedures that the government must follow before it deprives a person of life, liberty, or property. 49 Procedural due
process concerns itself with government action adhering to the established process when it makes an intrusion into
the private sphere. Examples range from the form of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary
government action, provided the proper formalities are followed. Substantive due process completes the protection
envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a
person of life, liberty, or property.50

The question of substantive due process, moreso than most other fields of law, has reflected dynamism in
progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally
awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality
though of constitutional due process has not been predicated on the frequency with which it has been utilized to
achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to
determine the proper metes and bounds for its application.

C.

The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with
the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products. 51 Footnote 4 of the
Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a
discrimination against a "discrete and insular" minority or infringement of a "fundamental right." 52 Consequently,
two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or
restricting the political process, and the rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court
for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny was adopted by the U.S.
Supreme Court in Craig,55 after the Court declined to do so in Reed v. Reed. 56 While the test may have first been
articulated in equal protection analysis, it has in the United States since been applied in all substantive due process
cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. 57 Using the
rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental
interest.58 Under intermediate review, governmental interest is extensively examined and the availability of less
restrictive measures is considered.59 Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality
and the amount of governmental interest brought to justify the regulation of fundamental freedoms. 60 Strict scrutiny
is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection. 61 The United States Supreme Court
has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, 62 judicial access63and
interstate travel.64

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the
petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon
is the injury to property sustained by the petitioners, an injury that would warrant the application of the most
deferential standard – the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to
invoke as well the constitutional rights of their patrons – those persons who would be deprived of availing short time
access or wash-up rates to the lodging establishments in question.

Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn
of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel
the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial"
yet fundamental freedoms – which the people reflexively exercise any day without the impairing awareness of their
constitutional consequence – that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally
incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may
or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big
Brother presence as they interact with each other, their society and nature, in a manner innately understood by them
as inherent, without doing harm or injury to others.

D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v.
Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right
to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he
has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[65] In
accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work
where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in
the concept of liberty.[66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said:

While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy
those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution
for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. 67 [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City
asserts before this Court that the subject establishments "have gained notoriety as venue of ‘prostitution, adultery
and fornications’ in Manila since they ‘provide the necessary atmosphere for clandestine entry, presence and exit
and thus became the ‘ideal haven for prostitutes and thrill-seekers.’"68 Whether or not this depiction of a mise-en-
scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting
single adults which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our
holding therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect.
As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible;
indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon
the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the
will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any
real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be
justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of the citizen. 70

We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very
legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to
choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers
who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels.
Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with
purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a
convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of
lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power
measure. It must appear that the interests of the public generally, as distinguished from those of a particular class,
require an interference with private rights and the means must be reasonably necessary for the accomplishment of
the purpose and not unduly oppressive of private rights.71 It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation
must exist between the purposes of the measure and the means employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted
to be arbitrarily invaded.72

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty
or property is affected.73 However, this is not in any way meant to take it away from the vastness of State police
power whose exercise enjoys the presumption of validity. 74

Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is
a blunt and heavy instrument.75 The Ordinance makes no distinction between places frequented by patrons engaged
in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit
activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification
of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the
unjustified prohibition.

The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime home,76 and it is
skeptical of those who wish to depict our capital city – the Pearl of the Orient – as a modern-day Sodom or
Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will
have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities
such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The
solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather,
cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished
simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug
dealers through active police work would be more effective in easing the situation. So would the strict enforcement
of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion
on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can
easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit
activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging
their customers a portion of the rent for motel rooms and even apartments.

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from
needlessly intruding into the lives of its citizens. However well-intentioned the Ordinance may be, it is in effect an
arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons
without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a
day with immorality without accommodating innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the
judiciary provided that such measures do not trample rights this Court is sworn to protect. 77 The notion that the
promotion of public morality is a function of the State is as old as Aristotle. 78 The advancement of moral relativism
as a school of philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on
which particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its
citizens could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate
accommodation of different interests.79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate
as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts
to legislate morality will fail if they are widely at variance with public attitudes about right and wrong.80 Our penal
laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between
right and wrong, they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction,
but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is
distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and
immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected
by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as
the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of
office, and because they are entrusted by the people to uphold the law.81

Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is
hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left
to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more
judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the
Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby
declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod
City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children, namely: JO-ANN,
JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93 percent of a total
population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands to love
their wives as their own bodies just as Christ loved the church and gave himself up for her 2 failed to prevent, or even
to curb, the pervasiveness of violence against Filipino women. The National Commission on the Role of Filipino
Women (NCRFW) reported that, for the years 2000-2003, "female violence comprised more than 90o/o of all forms
of abuse and violence and more than 90% of these reported cases were committed by the women's intimate partners
such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted Republic
Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes." It took effect on March
27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their children
(VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or any person who has or had a
sexual or dating relationship, or with whom the woman has a common child. 5 The law provides for protection orders
from the barangay and the courts to prevent the commission of further acts of VAWC; and outlines the duties and
responsibilities of barangay officials, law enforcers, prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the equal
protection and due process clauses, and an undue delegation of judicial power to barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor children,
a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the issuance
of a Temporary Protection Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262.
She claimed to be a victim of physical abuse; emotional, psychological, and economic violence as a result of marital
infidelity on the part of petitioner, with threats of deprivation of custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years her senior.
They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner but
whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old. 8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her husband. On the
other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and demands absolute obedience
from his wife and children. He forbade private respondent to pray, and deliberately isolated her from her friends.
When she took up law, and even when she was already working part time at a law office, petitioner trivialized her
ambitions and prevailed upon her to just stay at home. He was often jealous of the fact that his attractive wife still
catches the eye of some men, at one point threatening that he would have any man eyeing her killed. 9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank, Bacolod
City, who is the godmother of one of their sons. Petitioner admitted to the affair when private respondent confronted
him about it in 2004. He even boasted to the household help about his sexual relations with said bank manager.
Petitioner told private respondent, though, that he was just using the woman because of their accounts with the
bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally wounded. In
one of their quarrels, petitioner grabbed private respondent on both arms and shook her with such force that caused
bruises and hematoma. At another time, petitioner hit private respondent forcefully on the lips that caused some
bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann, who had seen the text messages he sent to
his paramour and whom he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times.
When private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the latter
leaves, petitioner would beat her up. Even the small boys are aware of private respondent's sufferings. Their 6-year-
old son said that when he grows up, he would beat up his father because of his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On December 17,
2005, while at home, she attempted suicide by cutting her wrist. She was found by her son bleeding on the floor.
Petitioner simply fled the house instead of taking her to the hospital. Private respondent was hospitalized for about
seven (7) days in which time petitioner never bothered to visit, nor apologized or showed pity on her. Since then,
private respondent has been undergoing therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file charges against the
bank manager, petitioner got angry with her for jeopardizing the manager's job. He then packed his things and told
private respondent that he was leaving her for good. He even told private respondent's mother, who lives with them
in the family home, that private respondent should just accept his extramarital affair since he is not cohabiting with
his paramour and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her children from
her and deprive her of financial support. Petitioner had previously warned her that if she goes on a legal battle with
him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the President of
three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading Corporation – of
which he and private respondent are both stockholders. In contrast to the absolute control of petitioner over said
corporations, private respondent merely draws a monthly salary of ₱20,000.00 from one corporation only, the
Negros Rotadrill Corporation. Household expenses amounting to not less than ₱200,000.00 a month are paid for by
private respondent through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill Corporation, and
enjoys unlimited cash advances and other benefits in hundreds of thousands of pesos from the corporations. 16 After
private respondent confronted him about the affair, petitioner forbade her to hold office at JBTC Building,
Mandalagan, where all the businesses of the corporations are conducted, thereby depriving her of access to full
information about said businesses. Until the filing of the petition a quo, petitioner has not given private respondent
an accounting of the businesses the value of which she had helped raise to millions of pesos. 17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private respondent and her
children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days, which
is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within 24
hours from receipt of the Temporary Restraining Order and if he refuses, ordering that he be removed by
police officers from the conjugal dwelling; this order is enforceable notwithstanding that the house is under
the name of 236 Realty Holdings Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to
allow the Petitioner (private respondent herein) to enter the conjugal dwelling without any danger from the
Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides to
return to the conjugal dwelling to remove things, the Petitioner shall be assisted by police officers when re-
entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of
the danger that the Respondent will attempt to take her children from her when he arrives from Manila and
finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and driver from a
distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioner may be
temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly or
indirectly, or through other persons, or contact directly or indirectly her children, mother and household
help, nor send gifts, cards, flowers, letters and the like. Visitation rights to the children may be subject of a
modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering the
Philippine National Police Firearms and Explosives Unit and the Provincial Director of the PNP to cancel
all the Respondent's firearm licenses. He should also be ordered to surrender any unlicensed firearms in his
possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house for them, and
educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from all the
corporations from 1 January 2006 up to 31 March 2006, which himself and as President of the corporations
and his Comptroller, must submit to the Court not later than 2 April 2006. Thereafter, an accounting of all
these funds shall be reported to the court by the Comptroller, copy furnished to the Petitioner, every 15
days of the month, under pain of Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and considering the
financial resources of the Respondent and his threat that if the Petitioner sues she will not get a single
 centavo, the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE
MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended TPO, 20 effective
for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and the
Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the continued use
of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty Thousand
Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month
until the matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for Renewal of
the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1) comply with the three-day
notice rule, and (2) contain a notice of hearing. He further asked that the TPO be modified by (1) removing one
vehicle used by private respondent and returning the same to its rightful owner, the J-Bros Trading Corporation, and
(2) cancelling or reducing the amount of the bond from ₱5,000,000.00 to a more manageable level at ₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved 22 for the modification of the TPO to allow him visitation rights to
his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following modifications
prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie and her
children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared in Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in Pitimini
St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary Protection Order
by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove Respondent
from the conjugal dwelling within eight (8) hours from receipt of the Temporary Protection Order by his
counsel, and that he cannot return until 48 hours after the petitioners have left, so that the petitioner Rosalie
and her representatives can remove things from the conjugal home and make an inventory of the household
furniture, equipment and other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00 for
clothes of the three petitioners (sic) children within 24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court within 24
hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation of proof of
payment of such expenses.23
Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with the TPO;
and committed new acts of harassment against her and their children, private respondent filed another
application24 for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was
purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex Van used by private
respondent and the children. A writ of replevin was served upon private respondent by a group of six or seven
policemen with long firearms that scared the two small boys, Jessie Anthone and Joseph Eduard. 25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap him, which
incident traumatized the boy resulting in his refusal to go back to school. On another occasion, petitioner allegedly
grabbed their daughter, Jo-Ann, by the arm and threatened her.26 The incident was reported to the police, and Jo-
Ann subsequently filed a criminal complaint against her father for violation of R.A. 7610, also known as the
"Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the conjugal home
of a complaint for kidnapping and illegal detention against private respondent. This came about after private
respondent, armed with a TPO, went to said home to get her and her children's belongings. Finding some of her
things inside a housemaid's (Sheryl Jamola) bag in the maids' room, private respondent filed a case for qualified
theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts of violence
against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any form
with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother Primitiva
Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita Bornales, security
guard Darwin Gayona and the petitioner's other household helpers from a distance of 1,000 meters, and
shall not enter the gate of the subdivision where the Petitioners are temporarily residing, as well as from the
schools of the three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees directly,
otherwise he will have access to the children through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for rental for
the period from August 6 to September 6, 2006; and support in arrears from March 2006 to August 2006
the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van with
Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent is ordered to provide
the petitioner another vehicle which is the one taken by J Bros Tading;
 8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal assets, or
those real properties in the name of Jesus Chua Garcia only and those in which the conjugal partnership of
gains of the Petitioner Rosalie J. Garcia and respondent have an interest in, especially the conjugal home
located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which are
conjugal assets or those in which the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by
TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of this
TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale, encumbrance or
disposition of these above-cited properties to any person, entity or corporation without the personal
presence of petitioner Rosalie J. Garcia, who shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten (10) days, and
gave petitioner a period of five (5) days within which to show cause why the TPO should not be renewed, extended,
or modified. Upon petitioner's manifestation,30 however, that he has not received a copy of private respondent's
motion to modify/renew the TPO, the trial court directed in its Order 31 dated October 6, 2006 that petitioner be
furnished a copy of said motion. Nonetheless, an Order 32 dated a day earlier, October 5, had already been issued
renewing the TPO dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection Order issued
on August 23, 2006 is hereby renewed and extended for thirty (30) days and continuously extended and renewed for
thirty (30) days, after each expiration, until further orders, and subject to such modifications as may be ordered by
the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required comment to private
respondent's motion for renewal of the TPO arguing that it would only be an "exercise in futility." 33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a petition 34 for
prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary restraining order, challenging
(1) the constitutionality of R.A. 9262 for being violative of the due process and the equal protection clauses, and (2)
the validity of the modified TPO issued in the civil case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the petition for failure of petitioner to
raise the constitutional issue in his pleadings before the trial court in the civil case, which is clothed with jurisdiction
to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial court
constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolution 37 dated August 14,
2007, petitioner is now before us alleging that –

The Issues
 I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE
OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE
PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262
IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY
OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262, we shall first
tackle the propriety of the dismissal by the appellate court of the petition for prohibition (CA-G.R. CEB-SP. No.
01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in
the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial court, it will not be considered
on appeal.39 Courts will not anticipate a question of constitutional law in advance of the necessity of deciding it. 40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City, petitioner
argues that the Family Court has limited authority and jurisdiction that is "inadequate to tackle the complex issue of
constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional Trial Courts.
Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family courts have exclusive original
jurisdiction to hear and decide cases of domestic violence against women and children. 42 In accordance with said
law, the Supreme Court designated from among the branches of the Regional Trial Courts at least one Family Court
in each of several key cities identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262
now provides that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and their children under this law. In the absence of such court in
the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or
any of its elements was committed at the option of the complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a court of
general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land
registration, guardianship, naturalization, admiralty or insolvency. 44 It is settled that RTCs have jurisdiction to
resolve the constitutionality of a statute,45 "this authority being embraced in the general definition of the judicial
power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental
law."46The Constitution vests the power of judicial review or the power to declare the constitutionality or validity of
a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation
not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or
law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality
happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been raised at the
earliest opportunity in his Opposition to the petition for protection order before the RTC of Bacolod City, which had
jurisdiction to determine the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down a new
kind of procedure requiring the respondent to file an opposition to the petition and not an answer. 49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he himself shall
verify. It must be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent
protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but any
cause of action which could be the subject thereof may be litigated in a separate civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and third-party
complaint are to be excluded from the opposition, the issue of constitutionality cannot likewise be raised therein. A
counterclaim is defined as any claim for money or other relief which a defending party may have against an
opposing party.50 A cross-claim, on the other hand, is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. 51Finally,
a third-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to
the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. 52As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action that
could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited from
being raised in the opposition in view of the familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right of private
respondent to a protection order is founded solely on the very statute the validity of which is being attacked 53 by
petitioner who has sustained, or will sustain, direct injury as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause for the non-issuance of a protection
order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred petitioner from
raising the same in his Opposition. The question relative to the constitutionality of a statute is one of law which does
not need to be supported by evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows
the conduct of a hearing to determine legal issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue an order
containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent
possible, within the 30-day period of the effectivity of the temporary protection order issued. (Emphasis
supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary, Section 26 (b)
of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due to expire, the trial court may
extend or renew the said order for a period of thirty (30) days each time until final judgment is rendered. It may
likewise modify the extended or renewed temporary protection order as may be necessary to meet the needs of the
parties. With the private respondent given ample protection, petitioner could proceed to litigate the constitutional
issues, without necessarily running afoul of the very purpose for the adoption of the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with prayer for
injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded upon an
honest belief that if he finds succor in a superior court, he could be granted an injunctive relief. However, Section
22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a petition for certiorari, mandamus or prohibition
against any interlocutory order issued by the trial court. Hence, the 60-day TRO issued by the appellate court in this
case against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto was improper, and it
effectively hindered the case from taking its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover, if the appeal
of a judgment granting permanent protection shall not stay its enforcement, 55 with more reason that a TPO, which is
valid only for thirty (30) days at a time, 56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to have the
same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or
member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence
of such a prosecution even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.
(Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of the case. It
bears stressing, however, that protection orders are granted ex parte so as to protect women and their children from
acts of violence. To issue an injunction against such orders will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel issues, or
issues of first impression, with far-reaching implications. We have, time and again, discharged our solemn duty as
final arbiter of constitutional issues, and with more reason now, in view of private respondent's plea in her
Comment59 to the instant Petition that we should put the challenge to the constitutionality of R.A. 9262 to rest. And
so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could
very well be committed by either the husband or the wife, gender alone is not enough basis to deprive the
husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became R.A. 9262, reveals that while
the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had originally proposed what
she called a "synthesized measure"62 – an amalgamation of two measures, namely, the "Anti-Domestic Violence
Act" and the "Anti-Abuse of Women in Intimate Relationships Act" 63 – providing protection to "all family
members, leaving no one in isolation" but at the same time giving special attention to women as the "usual victims"
of violence and abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have expressed
concerns and relayed these concerns to me that if we are to include domestic violence apart from against women as
well as other members of the household, including children or the husband, they fear that this would weaken the
efforts to address domestic violence of which the main victims or the bulk of the victims really are the wives, the
spouses or the female partners in a relationship. We would like to place that on record. How does the good Senator
respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in Intimate
Relationship. They do not want to include men in this domestic violence. But plenty of men are also being abused
by women. I am playing safe so I placed here members of the family, prescribing penalties therefor and providing
protective measures for victims. This includes the men, children, live-in, common-law wives, and those related with
the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women and not to
families which was the issue of the AWIR group. The understanding that I have is that we would be having a
broader scope rather than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong. However, I believe
that there is a need to protect women's rights especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to file a case
against their spouses, their live-in partners after years, if not decade, of battery and abuse. If we broaden the scope to
include even the men, assuming they can at all be abused by the women or their spouses, then it would not equalize
the already difficult situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that the men in this
Chamber who love their women in their lives so dearly will agree with this representation. Whether we like it or not,
it is an unequal world. Whether we like it or not, no matter how empowered the women are, we are not given equal
opportunities especially in the domestic environment where the macho Filipino man would always feel that he is
stronger, more superior to the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the family
members have been included in this proposed measure since the other members of the family other than women are
also possible victims of violence. While women are most likely the intended victims, one reason incidentally why
the measure focuses on women, the fact remains that in some relatively few cases, men also stand to be victimized
and that children are almost always the helpless victims of violence. I am worried that there may not be enough
protection extended to other family members particularly children who are excluded. Although Republic Act No.
7610, for instance, more or less, addresses the special needs of abused children. The same law is inadequate.
Protection orders for one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing that they may use
this law to justify their abusive behavior against women. However, we should also recognize that there are
established procedures and standards in our courts which give credence to evidentiary support and cannot just
arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the basic social
institution. Though I recognize the unequal power relations between men and women in our society, I believe we
have an obligation to uphold inherent rights and dignity of both husband and wife and their immediate family
members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a critical input
arrived at after a series of consultations/meetings with various NGOs, experts, sports groups and other affected
sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be removing the
"men and children" in this particular bill and focus specifically on women alone. That will be the net effect of that
proposed amendment. Hearing the rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito
Estrada, I am not sure now whether she is inclined to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will propose an
amendment to the amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent of the
amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake.
At saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we remove the
children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is not limited to
minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old children being abused
by their fathers, even by their mothers. And it breaks my heart to find out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that. It will enhance
and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as amended, is
approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute. 67 Hence, we
dare not venture into the real motivations and wisdom of the members of Congress in limiting the protection against
violence and abuse under R.A. 9262 to women and children only. No proper challenge on said grounds may be
entertained in this proceeding. Congress has made its choice and it is not our prerogative to supplant this judgment.
The choice may be perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the necessity, adequacy,
wisdom and expediency of any law.68 We only step in when there is a violation of the Constitution. However, none
was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. The oft-repeated disquisition in the early case of Victoriano v. Elizalde Rope
Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with
one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter
of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for real differences; that it must be germane to
the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid classification as
shall hereinafter be discussed and, as such, did not violate the equal protection clause by favoring women over men
as victims of violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than men to be
victims of violence; and the widespread gender bias and prejudice against women all make for real differences
justifying the classification under the law. As Justice McIntyre succinctly states, "the accommodation of differences
... is the essence of true equality." 70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and Women's
Empowerment), violence against women (VAW) is deemed to be closely linked with the unequal power relationship
between women and men otherwise known as "gender-based violence". Societal norms and traditions dictate people
to think men are the leaders, pursuers, providers, and take on dominant roles in society while women are nurturers,
men's companions and supporters, and take on subordinate roles in society. This perception leads to men gaining
more power over women. With power comes the need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution 48/104 on the
Declaration on Elimination of Violence Against Women on December 20, 1993 stating that "violence against
women is a manifestation of historically unequal power relations between men and women, which have led to
domination over and discrimination against women by men and to the prevention of the full advancement of women,
and that violence against women is one of the crucial social mechanisms by which women are forced into
subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and
developments in advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of R.A. 9262
and its Implementing Rules last October 27, 2004, the pertinent portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a family was
accorded the right to use force on members of the family under his control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of men. Women
were seen in virtually all societies to be naturally inferior both physically and intellectually. In ancient Western
societies, women whether slave, concubine or wife, were under the authority of men. In law, they were treated as
property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered his
property right over her. Judaism, Christianity and other religions oriented towards the patriarchal family
strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has been
quoted in his commentaries as saying husband and wife were one and that one was the husband. However, in the late
1500s and through the entire 1600s, English common law began to limit the right of husbands to chastise their
wives. Thus, common law developed the rule of thumb, which allowed husbands to beat their wives with a rod or
stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal
punishment ceased. Even then, the preservation of the family was given more importance than preventing violence
to women.

The metamorphosis of the law on violence in the United States followed that of the English common law. In 1871,
the Supreme Court of Alabama became the first appellate court to strike down the common law right of a husband to
beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in her face or
kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law... In person, the
wife is entitled to the same protection of the law that the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance leagues initiated it.
These leagues had a simple focus. They considered the evils of alcoholism as the root cause of wife abuse. Hence,
they demonstrated and picketed saloons, bars and their husbands' other watering holes. Soon, however, their crusade
was joined by suffragette movements, expanding the liberation movement's agenda. They fought for women's right
to vote, to own property, and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They succeeded
in transforming the issue into an important public concern. No less than the United States Supreme Court, in 1992
case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of severe assaults
by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their
wives during the past year. The [American Medical Association] views these figures as "marked underestimates,"
because the nature of these incidents discourages women from reporting them, and because surveys typically
exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or
hospitals when the survey is conducted. According to the AMA, "researchers on family violence agree that the true
incidence of partner violence is probably double the above estimates; or four million severely assaulted women per
year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner
or ex-partner during their lifetime... Thus on an average day in the United States, nearly 11,000 women are severely
assaulted by their male partners. Many of these incidents involve sexual assault... In families where wife beating
takes place, moreover, child abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse.
Psychological abuse, particularly forced social and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior
alternative...Many abused women who find temporary refuge in shelters return to their husbands, in large part
because they have no other source of income... Returning to one's abuser can be dangerous. Recent Federal Bureau
of Investigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their
spouses...Thirty percent of female homicide victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States Charter and
the Universal Declaration of Human Rights affirmed the equality of all human beings. In 1979, the UN General
Assembly adopted the landmark Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW). In 1993, the UN General Assembly also adopted the Declaration on the Elimination of Violence Against
Women. World conferences on the role and rights of women have been regularly held in Mexico City, Copenhagen,
Nairobi and Beijing. The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's movements. No less than
Section 14, Article II of our 1987 Constitution mandates the State to recognize the role of women in nation building
and to ensure the fundamental equality before the law of women and men. Our Senate has ratified the CEDAW as
well as the Convention on the Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004,
enacted Rep. Act No. 9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and children
show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases reported
(9,903). And for the first semester of 2003, there were 2,381 reported cases out of 4,354 cases which represent
54.31%. xxx (T)he total number of women in especially difficult circumstances served by the Department of Social
 Welfare and Development (DSWD) for the year 2002, there are 1,417 physically abused/maltreated cases out of the
total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of
2003. Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence against women across
an eight-year period from 2004 to August of 2011 with violations under R.A. 9262 ranking first among the different
VAW categories since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported
2004 2005 2006 2007 2008 2009 2010 2011
Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuous Rape 38 46 26 22 28 27 19 23

Attempted Rape 194 148 185 147 204 167 268 201

Acts of
580 536 382 358 445 485 745 625
Lasciviousness

Physical
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Injuries

Sexual
53 37 38 46 18 54 83 63
Harassment

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15
Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction
16 34 23 28 18 25 22
/Kidnapping 29

Unjust Vexation 90 50 59 59 83 703 183 155

Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in the
Philippines because incidents thereof are relatively low and, perhaps, because many men will not even attempt to
report the situation. In the United Kingdom, 32% of women who had ever experienced domestic violence did so four
or five (or more) times, compared with 11% of the smaller number of men who had ever experienced domestic
violence; and women constituted 89% of all those who had experienced 4 or more incidents of domestic
violence.75Statistics in Canada show that spousal violence by a woman against a man is less likely to cause injury
than the other way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to experience sexual
assault. In fact, many cases of physical violence by a woman against a spouse are in self-defense or the result of
many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the Philippines, the
same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to pick up,
gather and deposit in receptacles the manure emitted or discharged by their vehicle-drawing animals in any public
highways, streets, plazas, parks or alleys, said ordinance was challenged as violative of the guaranty of equal
protection of laws as its application is limited to owners and drivers of vehicle-drawing animals and not to those
animals, although not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-drawing
animals that also traverse the city roads, "but their number must be negligible and their appearance therein merely
occasional, compared to the rig-drawing ones, as not to constitute a menace to the health of the community." 77 The
mere fact that the legislative classification may result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation by law produces inequality in some degree, but
the law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women are often
treated differently and less seriously than other crimes. This was argued by then United States Senator Joseph R.
Biden, Jr., now Vice President, chief sponsor of the Violence Against Women Act (VAWA), in defending the civil
rights remedy as a valid exercise of the U.S. Congress' authority under the Commerce and Equal Protection Clauses.
He stressed that the widespread gender bias in the U.S. has institutionalized historic prejudices against victims of
rape or domestic violence, subjecting them to "double victimization" – first at the hands of the offender and then of
the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that "(w)henever
violence occurs in the family, the police treat it as a private matter and advise the parties to settle the conflict
themselves. Once the complainant brings the case to the prosecutor, the latter is hesitant to file the complaint for fear
that it might later be withdrawn. This lack of response or reluctance to be involved by the police and prosecution
reinforces the escalating, recurring and often serious nature of domestic violence." 80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct Unbecoming of a
Judge. He used derogatory and irreverent language in reference to the complainant in a petition for TPO and PPO
under R.A. 9262, calling her as "only a live-in partner" and presenting her as an "opportunist" and a "mistress" in an
"illegitimate relationship." Judge Amila even called her a "prostitute," and accused her of being motivated by
"insatiable greed" and of absconding with the contested property. 81 Such remarks betrayed Judge Amila's prejudices
and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against
women. As emphasized by the CEDAW Committee on the Elimination of Discrimination against Women,
addressing or correcting discrimination through specific measures focused on women does not discriminate against
men.82Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male," "husband-
bashing," and "hate-men" law deserves scant consideration. As a State Party to the CEDAW, the Philippines bound
itself to take all appropriate measures "to modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea
of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women." 84 Justice Puno
correctly pointed out that "(t)he paradigm shift changing the character of domestic violence from a private affair to a
public offense will require the development of a distinct mindset on the part of the police, the prosecution and the
judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address violence
committed against women and children, spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and children and
guarantees full respect for human rights. The State also recognizes the need to protect the family and its members
particularly women and children, from violence and threats to their personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and children in keeping
with the fundamental freedoms guaranteed under the Constitution and the provisions of the Universal Declaration of
Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, Convention on
the Rights of the Child and other international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5, 1981.
Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on October 6, 2003. 86 This
Convention mandates that State parties shall accord to women equality with men before the law87 and shall take all
appropriate measures to eliminate discrimination against women in all matters relating to marriage and family
relations on the basis of equality of men and women.88 The Philippines likewise ratified the Convention on the
Rights of the Child and its two protocols.89 It is, thus, bound by said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was promulgated, but to
future conditions as well, for as long as the safety and security of women and their children are threatened by
violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof defines
VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or
against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to
result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes,
but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object,
making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat
of force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of
the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the
physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but
is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any legitimate
profession, occupation, business or activity, except in cases wherein the other spouse/partner
objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment
of the conjugal, community or property owned in common;
 3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal money or
properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to research that has
exposed the dimensions and dynamics of battery. The acts described here are also found in the U.N. Declaration on
the Elimination of Violence Against Women.90 Hence, the argument advanced by petitioner that the definition of
what constitutes abuse removes the difference between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in his defense.
The acts enumerated above are easily understood and provide adequate contrast between the innocent and the
prohibited acts. They are worded with sufficient definiteness that persons of ordinary intelligence can understand
what conduct is prohibited, and need not guess at its meaning nor differ in its application. 91 Yet, petitioner
insists92that phrases like "depriving or threatening to deprive the woman or her child of a legal right," "solely
controlling the conjugal or common money or properties," "marital infidelity," and "causing mental or emotional
anguish" are so vague that they make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute
precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity,
is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid
merely because it might have been more explicit in its wordings or detailed in its provisions. 93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit. As
defined above, VAWC may likewise be committed "against a woman with whom the person has or had a sexual or
dating relationship." Clearly, the use of the gender-neutral word "person" who has or had a sexual or dating
relationship with the woman encompasses even lesbian relationships. Moreover, while the law provides that the
offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it
does not preclude the application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the
case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be proper
respondents in the case filed by the latter upon the allegation that they and their son (Go-Tan's husband) had
community of design and purpose in tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and
physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections afforded by the
due process clause of the Constitution. Says he: "On the basis of unsubstantiated allegations, and practically no
opportunity to respond, the husband is stripped of family, property, guns, money, children, job, future employment
and reputation, all in a matter of seconds, without an inkling of what happened." 95

A protection order is an order issued to prevent further acts of violence against women and their children, their
family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties
from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain
control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the
remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater
risk of violence; to accord the victim and any designated family or household member safety in the family residence,
and to prevent the perpetrator from committing acts that jeopardize the employment and support of the victim. It
also enables the court to award temporary custody of minor children to protect the children from violence, to prevent
their abduction by the perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in writing, signed and verified by the petitioner 98 thereby
undertaking full responsibility, criminal or civil, for every allegation therein. Since "time is of the essence in cases
of VAWC if further violence is to be prevented," 99 the court is authorized to issue ex parte a TPO after raffle but
before notice and hearing when the life, limb or property of the victim is in jeopardy and there is reasonable ground
to believe that the order is necessary to protect the victim from the immediate and imminent danger of VAWC or to
prevent such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim is
required not only to verify the allegations in the petition, but also to attach her witnesses' affidavits to the petition. 101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ
of preliminary attachment which is issued without notice and hearing because the time in which the hearing will take
could be enough to enable the defendant to abscond or dispose of his property, 102 in the same way, the victim of
VAWC may already have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if
notice and hearing were required before such acts could be prevented. It is a constitutional commonplace that the
ordinary requirements of procedural due process must yield to the necessities of protecting vital public
interests,103among which is protection of women and children from violence and threats to their personal safety and
security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice be
immediately given to the respondent directing him to file an opposition within five (5) days from service. Moreover,
the court shall order that notice, copies of the petition and TPO be served immediately on the respondent by the
court sheriffs. The TPOs are initially effective for thirty (30) days from service on the respondent. 104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of the notice
upon the respondent requiring him to file an opposition to the petition within five (5) days from service. The date of
the preliminary conference and hearing on the merits shall likewise be indicated on the notice. 105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or permanent protection order should not be issued. 106

It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised of the
charges imputed to him and afforded an opportunity to present his side. Thus, the fear of petitioner of being
"stripped of family, property, guns, money, children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a mere product of an overactive imagination. The essence of due
process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of
one's defense. "To be heard" does not only mean verbal arguments in court; one may be heard also through
pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise, on May 23, 2006,
petitioner filed a motion for the modification of the TPO to allow him visitation rights to his children. Still, the trial
court in its Order dated September 26, 2006, gave him five days (5) within which to show cause why the TPO
should not be renewed or extended. Yet, he chose not to file the required comment arguing that it would just be an
"exercise in futility," conveniently forgetting that the renewal of the questioned TPO was only for a limited period
(30 days) each time, and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the residence of
the victim, regardless of ownership of the residence, is virtually a "blank check" issued to the wife to claim any
property as her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is so. It
states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of the
following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of ownership of the
residence, either temporarily for the purpose of protecting the offended party, or permanently where no property
rights are violated. If the respondent must remove personal effects from the residence, the court shall direct a law
enforcement agent to accompany the respondent to the residence, remain there until the respondent has gathered his
things and escort him from the residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless of ownership,
only temporarily for the purpose of protecting the latter. Such removal and exclusion may be permanent only where
no property rights are violated. How then can the private respondent just claim any property and appropriate it for
herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and counseling,
the law has done violence to the avowed policy of the State to "protect and strengthen the family as a basic
autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a mediator.
The reason behind this provision is well-explained by the Commentary on Section 311 of the Model Code on
Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an order for
protection. Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual
agreement about the issue at hand. Violence, however, is not a subject for compromise. A process which involves
parties mediating the issue of violence implies that the victim is somehow at fault. In addition, mediation of issues in
a proceeding for an order of protection is problematic because the petitioner is frequently unable to participate
equally with the person against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the Constitution, is
placed upon the "Supreme Court and such other lower courts as may be established by law" and, thus, protests the
delegation of power to barangay officials to issue protection orders. 111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection Orders (BPOs) refer
to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under
Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay who receives applications for a BPO shall issue the
protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If
the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any
available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of the
BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay
official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. 112 On the
other hand, executive power "is generally defined as the power to enforce and administer the laws. It is the power of
carrying the laws into practical operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his unavailability,
by any available Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of his duty under the Local Government Code to "enforce
all laws and ordinances," and to "maintain public order in the barangay." 114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of certain facts and
to apply the law thereto in order to determine what his official conduct shall be and the fact that these acts may
affect private rights do not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding "whether there is
reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof," the
Punong Barangay must determine reasonable ground to believe that an imminent danger of violence against the
woman and her children exists or is about to recur that would necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an executive, not a judicial, function. The same holds true
with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law enforcement
agencies are required to extend assistance to victims of violence and abuse, it would be very unlikely that they
would remain objective and impartial, and that the chances of acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement agencies is consistent with their duty to enforce the law and to
maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict with the
Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no
doubt in the mind of the Court. In other words, the grounds for nullity must be beyond reasonable doubt.116 In the
instant case, however, no concrete evidence and convincing arguments were presented by petitioner to warrant a
declaration of the unconstitutionality of R.A. 9262, which is an act of Congress and signed into law by the highest
officer of the co-equal executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that
the legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with full knowledge
of the facts and for the purpose of promoting what is right and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against domestic violence
shows that one of its most difficult struggles was the fight against the violence of law itself. If we keep that in mind,
law will not again be a hindrance to the struggle of women for equality but will be its fulfillment." 118 Accordingly,
the constitutionality of R.A. 9262 is, as it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.SO ORDERED.
 SECOND DIVISION

CIRIACO BOY GUINGGUING, G.R. No. 128959

Petitioner,
Present:
PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.

THE HONORABLE COURT

OF APPEALS and THE
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondents.

September 30, 2005

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

DECISION
TINGA, J.:

The liberty of the press is indeed essential. Whoever would overthrow the liberty of a
nation must begin by subduing the freeness of speech.

- Benjamin Franklin[1]

The right of free expression stands as a hallmark of the modern democratic and humane state. [2] Not only
does it assure a persons right to say freely what is thought freely, it likewise evinces the politys freedom from
psychological insecurity. This fundamental liberty is translated into the constitutional guarantee that no law shall be
passed abridging the freedom of speech, of expression, or the press, [3] contained in the Bill of Rights,[4] which itself
obtains a position of primacy in our fundamental law.[5]

Criminal libel laws present a special problem. At face value, they might strike as laws passed that abridge the freedom
of speech, expression, or the press. Whatever seeming conflict between these two precepts has long been judicially
resolved with the doctrine that libelous speech does not fall within the ambit of constitutional protection. Nonetheless,
in ascertaining what class of materials may be considered as libelous, the freedom of expression clause, its purposes
as well as the evils it guards against, warrant primordial consideration and application.

Before this Court is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure, assailing
the Decision[6] and the Resolution[7] of the Court of Appeals (CA) dated 29 July 1996 and 3 October 1996,
respectively, in CA-G.R. CR No. 16413. The CA affirmed with modification[8] the decision[9] rendered by the
Regional Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco Boy Guingguing (petitioner) and Segundo Lim
(Lim) guilty beyond reasonable doubt of the crime of libel. This petition for certiorari was filed by petitioner alone,
hence the verdict of guilt with respect to Lim had already become final and executory.

The antecedent facts follow.

This case originated from a criminal complaint for libel filed by Cirse Choy Torralba (complainant) against
Lim and petitioner under Criminal Case No. CBU-26582. Complainant was a broadcast journalist who handled two
programs for radio stations DYLA and DYFX. The radio stations were based in Cebu City but the programs were
aired over a large portion of the Visayas and Mindanao.[10]

On 13 October 1991, Lim caused the publication of records of criminal cases filed against complainant as
well as photographs[11] of the latter being arrested. These were published by means of a one-page advertisement paid
for by Lim in the Sunday Post, a weekly publication edited and published by petitioner. The Sunday Post was
circulated in the province of Bohol, as well as in the Visayas and Mindanao. [12] The full text of the advertisement
which was the basis of the information[13]for libel reads:

REQUEST FOR PUBLIC SERVICE

ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY

TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO ENLIGHTEN ME

REGARDING THE DISPOSITION OF THE FOLLOWING WHICH APPEAR
HEREUNDER. THE CASES WERE FOUND IN THE BLOTTER OF THE CEBU CITY
POLICE DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE CASES,
WHETHER THEY HAVE BEEN DISMISSED, ARCHIVED AND/OR PENDING.

Name: CIRSE CHOY TORRALBA

CRIM. CASE NO. R-43035

FOR: MALICIOUS MISCHIEF
DATE FILED: MAY 10, 1979
COMPLAINANTS: DR. JOVENAL ALMENDRAS
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY
MR. VICTORIANO VELOSO
ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY
DISPOSITION: PENDING ARREST

CRIM. CASE NO. 17984-R

FOR : ESTAFA
DATE FILED: July 12, 1982
COMPLAINANTS: MR. PIO Y. GO AND
MRS. ROSALITA R. ROLDAN
ADDRESS: c/o 2nd Floor Martinez Bldg.
(ALPHA MKTG., INC.),
 Jones Ave., Cebu City
DISPOSITION: PENDING ARREST

CRIM. CASE NO. 14843-R

FOR: SERIOUS PHYSICAL INJURIES
DATED FILED: APRIL 28, 1980
COMPLAINANTS:
ADDRESS:
DISPOSITION: PROVISIONALLY DISMISSED
DATED: APRIL 14, 1991

NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER CLIPPING

COURTESY OF A CEBU CITY CONCERNED CITIZEN. THE CAPTION STORY
BELOW TELLS ALL. IF YOU KNOW WHO THE BUSINESSMAN ALLUDED TO IN
THE CAPTION, PLEASE DO TELL ME.
[Thereafter followed by a picture of a person with face blotted out being arrested
and an inset picture of the same person with face likewise blotted out, being
detained, these pictures being followed by the caption, which states]:

ESTAFA CASE. Members of Cebu City Police Intelligence group under Lt. Col. Eduardo
Ricardo arrested last night a businessman (extreme left) for his alleged involvement in
estafa case filed by APOCEMCO. Left photo a member of the team serves the warrant of
arrest order issued by CEBU RTC Judge German Lee.

ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY TORRALBA

TO HAVE BEEN SERVED A WARRANT OF ARREST IN A (P)LUSH UPTOWN
HOTEL IN CEBU CITY BY OPERATIVES OF THE CEBU CITY POLICE. NOW TELL
ME, IS IT YOU THE SAME CHOY TORRALBA REFERRED TO IN THE CAPTION
STORY. IF INDEED YOU ARE THE ONE AND THE SAME WHO APPEARED IN
THE PICTURE BELOW, PLEASE TO (sic) INFORM ME.:

[Thereafter followed by another picture, this time, the face of the person
being arrested is clearly shown to be that of Cirse Choy Torralba, followed
by this caption.]

SERENE EVENING: The otherwise serene evening enjoyed by businessman Choy

Torralba (left) in a plush uptown Hotel was disturbed by operatives (right) of the Cebu City
Police under P/Lt/Col. Eduardo Ricardo just to serve on the former a warrant of arrest
issued by Cebu RTC Judge German Lee relative to the suit filed by Apocemco against the
businessman (PR)

THANK YOU, AND MY BEST REGARDS.

PAID SPACE BY: (sgd.) SEGUNDO LIM[14]

Asserting inter alia that he had been acquitted and the case/s referred to had already been settled, complainant sought
Lim and petitioners conviction for libel. At the same time, he asked for moral, compensatory and exemplary damages
as well as attorneys fees because the publication allegedly placed him in public contempt and ridicule. It was claimed
that the publication was also designed to degrade and malign his person and destroy him as a broadcast journalist. [15]
Lim, in his defense, claimed that complainant was allegedly making scurrilous attacks against him and his family over
the airwaves. Since Lim had no access to radio time, he opted for paid advertisements via newspaper to answer the
attacks,[16] as a measure of self-defense. Lim also argued that complainant, as a media man and member of the fourth
estate, occupied a position almost similar to a public functionary and should not be onion-skinned and be able to
absorb the thrust of public scrutiny.[17]

After trial, the lower court concluded that the publication complained of was indeed libelous. [18] Declaring
that malice is the most important element of libel, it held that the same was present in the case because every
defamatory publication prima facie implies malice on the part of the author and publisher towards the person subject
thereof.[19] The lower court gave no credence to Lim and petitioners argument that the publication was resorted to in
self-defense.

The trial court likewise disregarded the insulative effects of complainants status as a mediaman to the prosecution of
the criminal libel charge. The publication of a calumny even against public officers or candidates for public office,
according to the trial court, is an offense most dangerous to the people. It deserves punishment because the latter may
be deceived thereby and reject the best and deserving citizens to their great injury. [20] It further held that a private
reputation is as constitutionally protected as the enjoyment of life, liberty and property such that anybody who attacks
a persons reputation by slanderous words or libelous publications is obliged to make full compensation for the damage
done.[21]

On appeal, the CA modified the penalty imposed but it affirmed the RTCs finding of guilt. The CA likewise
held that self-defense was unavailing as a justification since the defendant should not go beyond explaining what was
previously said of him. The appellate court asserted that the purpose of self-defense in libel is to repair, minimize or
remove the effect of the damage caused to him but it does not license the defendant to utter blow-for-blow scurrilous
language in return for what he received. Once the defendant hits back with equal or more scurrilous remarks
unnecessary for his defense, the retaliation becomes an independent act for which he may be liable. [22] For this reason,
the CA refused to sanction the invocation of self-defense.

Petitioner now comes before this Court praying for the reversal of the judgment against him. Petitioner contends inter
alia that as editor-publisher of the Sunday Post and as a member of the fourth estate, the lower courts finding of guilt
against him constitutes an infringement of his constitutional right to freedom of speech and of the press. [23] Petitioner
likewise faults the lower courts failure to appreciate their invocation of self-defense.
For resolution of this Court, therefore, is the fundamental question of whether the publication subject matter of the
instant case is indeed libelous. While the findings and conclusions of the lower courts are rigid in their application of
the strict letter of the law, the issue seems more complex than it appears at first blush. The Court is compelled to delve
deeper into the issue considering that libel principles formulated at one time or another have waxed and waned through
the years, in the constant ebb and flow of judicial review.[24] A change in the factual milieu of a case is apt to evoke a
change in the judgment applicable. Viewed in this context, the petition has merit and the judgment appealed from must
be reversed.

Criminal Libel vis--vis the

Guarantee of Free Speech

Under our law, criminal libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the memory of one who is dead. [25] Thus, the elements of libel are: (a)
imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person
defamed; and, (d) existence of malice.[26]

Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for libel. In the
landmark opinion of England's Star Chamber in theLibelis Famosis case in 1603, two major propositions in the
prosecution of defamatory remarks were established: first, that libel against a public person is a greater offense than
one directed against an ordinary man, and second, that it is immaterial that the libel be true. [27] These propositions
were due to the fact that the law of defamatory libel was developed under the common law to help government protect
itself from criticism and to provide an outlet for individuals to defend their honor and reputation so they would not
resort to taking the law into their own hands.[28]
Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for seditious
libel in the then English colony of New York. Zenger, the publisher of the New-York Weekly Journal, had been
charged with seditious libel, for his papers consistent attacks against Colonel William Cosby, the Royal Governor of
New York. In his defense, Zengers counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby
were the right of every free-born subject to make when the matters so published can be supported with truth. [29] The
jury, by acquitting Zenger, acknowledged albeit unofficially the defense of truth in a libel action. The Zenger case
also laid to rest the idea that public officials were immune from criticism. [30]
The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the emergence of the
American democratic ideal. It has been characterized as the first landmark in the tradition of a free press, then a
somewhat radical notion that eventually evolved into the First Amendment[31] in the American Bill of Rights and also
proved an essential weapon in the war of words that led into the American War for Independence. [32]

Yet even in the young American state, the government paid less than ideal fealty to the proposition that Congress shall
pass no law abridging the freedom of speech. The notorious Alien and Sedition Acts of 1798 [33] made it a crime for
any person who, by writing, speaking or printing, should threaten an officer of the government with damage to his
character, person, or estate. The law was passed at the insistence of President John Adams, whose Federalist Party had
held a majority in Congress, and who had faced persistent criticism from political opponents belonging to the
Jeffersonian Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors, were
arrested under the law. The Acts were never challenged before the U.S. Supreme Court, but they were not subsequently
renewed upon their expiration. [34]

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President Adams in
1800. In his stead was elected Thomas Jefferson, a man who once famously opined, Were it left to me to decide
whether we should have a government without newspapers, or newspapers without a government, I should not hesitate
a moment to prefer the latter.[35]

There is an important observation to be made about the quality of the American press during the time of Jefferson,
one that is crucial to the contemporaneous understanding of the freedom of expression clause at the time of its
inception. The tenor of the public debate during that era was hardly polite. About the impending election of Jefferson,
the New England Courant predicted that murder, robbery, rape and adultery and incest will be openly taught and
practiced, the air will be rent with cries of distress, the soil soaked with blood and the nation black with crimes. [36] After
Jefferson was elected, rumors spread about his dalliances with his slave, Sally Hemmings, adding more fodder to his
critics. The thirteen-year old William Cullen Bryant, who would grow up to become a prominent poet and abolitionist,
published the following doggerel: Thy countrys ruin and thy countrys shame!/ Go wretch! Resign the Presidential
chair/Disclose thy secret measures foul and fair/ Go scan, philosophist, thy [Sallys] charms/And sink supinely in her
sable arms.[37]

Any comprehensive history of the American media during the first few decades of the existence of the United States
would reveal a similar preference in the media for such mad-dog rhetoric.[38] These observations are important in light
of the misconception that freedom of expression extends only to polite, temperate, or reasoned expression. The assailed
decision of the RTC betrays such a perception, when it opined that the subject advertisement was libelous because by
the language used, it had passed from the bounds of playful gist, and intensive criticism into the region of scurrilous
calumniation and intemperate personalities.[39] Evidently, the First Amendment was designed to protect expression
even at its most rambunctious and vitriolic form as it had prevalently taken during the time the clause was enacted.

Nonetheless, juristic enforcement of the guarantee of freedom of expression was not demonstrably prominent in the
United States during most of the 1800s. Notably, the prevalent philosophy then was that the Bill of Rights did not
apply to the different federal states.[40] When the US Supreme Court was confronted with substantial First Amendment
issues in the late 1800s and early 1900s, it responded by repeatedly declining to protect free speech. [41] The subsequent
enactment of the due process clause in the Fourteenth Amendment eventually allowed the U.S. Supreme Court to
accept, in Gitlow v. New York[42] that the First Amendment was protected from impairment by the States, thus allowing
for a more vigorous enforcement of the freedom of expression clause in the twentieth century.[43]
The most important American ruling on libel, arguably from which modern libel law emerged [44] was New York Times
v. Sullivan,[45] penned by the liberal lion Justice William Brennan, Jr. In ascertaining whether the New York Times
was liable for damages in a libel action, the U.S. Supreme Court had acknowledged that the writing in question, an
advertisement published in the paper[46] extolling the virtues of the civil rights movement, had contained several factual
inaccuracies in describing actions taken by Montgomery, Alabama officials on civil rights protesters. [47] The Court
even concluded that at most, there was a finding against the New York Times of negligence in failing to discover the
misstatements against the news stories in the newspapers own files.[48]

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment freedoms in the
prosecution of criminal libel. Famously, the precedent was established that a public official may not successfully sue
for libel unless the official can prove actual malice, which was defined as with knowledge that the statement was false
or with reckless disregard as to
whether or not it was true.[49] By this standard, it was concluded that factual errors aside, actual malice was not proven
to sustain the convictions for libel. Moreover, leeway was allowed even if the challenged statements were factually
erroneous if honestly made.[50]

Shortly after New York Times was promulgated, its principles were extended by the U.S. Supreme Court to criminal
libel actions in Garrison v. Louisiana.[51] The decision, also penned by Justice Brennan, commented on the marked
decline in the common resort to criminal libel actions:

Where criticism of public officials is concerned, we see no merit in the argument that criminal libel
statutes serve interests distinct from those secured by civil libel laws, and therefore should not be
subject to the same limitations. At common law, truth was no defense to criminal libel. Although
the victim of a true but defamatory publication might not have been unjustly damaged in reputation
by the libel, the speaker was still punishable since the remedy was designed to avert the possibility
that the utterance would provoke an enraged victim to a breach of peace . . .
 [However], preference for the civil remedy, which enabled the frustrated victim to trade chivalrous
satisfaction for damages, has substantially eroded the breach of peace justification for criminal libel
laws. In fact, in earlier, more violent times, the civil remedy had virtually pre-empted the field of
defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual
desuetude.[52]

Then, the Court proceeded to consider whether the historical limitation of the defense of truth in criminal libel to
utterances published with good motives and for justifiable ends: [53]

. . . The good motives restriction incorporated in many state constitutions and statutes to
reflect Alexander Hamiltons unsuccessfully urged formula in People v. Croswell, liberalized the
common-law rule denying any defense for truth. . . . In any event, where the criticism is of public
officials and their conduct of public business, the interest in private reputation is overborne
by the larger public interest, secured by the Constitution, in the dissemination of truth. . . .

Moreover, even where the utterance is false, the great principles of the Constitution
which secure freedom of expression in this area preclude attaching adverse consequences to
any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if
the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he
did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and
the ascertainment of truth. . . .[54]

Lest the impression be laid that criminal libel law was rendered extinct in regards to public officials, the Court made
this important qualification in Garrison:

The use of calculated falsehood, however, would put a different cast on the constitutional
question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right
of free speech, it does not follow that the lie, knowingly and deliberately published about a public
official, should enjoy a like immunity. At the time the First Amendment was adopted, as today,
there were those unscrupulous enough and skillful enough to use the deliberate or reckless
falsehood as an effective political tool to unseat the public servant or even topple an
administration. That speech is used as a tool for political ends does not automatically bring it
under the protective mantle of the Constitution. For the use of the known lie as a tool is at once
with odds with the premises of democratic government and with the orderly manner in which
economic, social, or political change is to be effected. [55]

Another ruling crucial to the evolution of our understanding was Curtis Publishing Co. v. Butts,[56] which expanded
the actual malice test to cover not just public officials, but also public figures. The U.S. Supreme Court, speaking
through Chief Justice Warren, stated that:

[D]ifferentiation between public figures and public officials and adoption of separate
standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in
this country, the distinctions between governmental and private sectors are blurred. . . . [I]t is plain
that although they are not subject to the restraints of the political process, public figures, like public
officials, often play an influential role in ordering society. And surely as a class these public figures
have as ready access as public officials to mass media of communication, both to influence policy
 and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial
interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate
about their involvement in public issues and events is as crucial as it is in the case of public officials.
The fact that they are not amenable to the restraints of the political process only underscores the
legitimate and substantial nature of the interest, since it means that public opinion may be the only
instrument by which society can attempt to influence their conduct. [57]

The public figure concept was later qualified in the case of Gertz v. Welch, Inc.,[58] which held that a private person
should be able to recover damages without meeting the New York Times standard.[59] In doing so, the US Supreme
Court recognized the legitimate state interest in compensating private individuals for wrongful injury to reputation. [60]

The prominent American legal commentator, Cass Sunstein, has summarized the current American trend in libel law
as follows:

[C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify
a complex body of law: In the highest, most-speech protective tier is libelous speech directed against
a public figure. Government can allow libel plaintiffs to recover damages as a result of such speech if
and only if the speaker had actual malicethat is, the speaker must have known that the speech was
false, or he must have been recklessly indifferent to its truth or falsity. This standard means that the
speaker is protected against libel suits unless he knew that he was lying or he was truly foolish to think
that he was telling the truth. A person counts as a public figure (1) if he is a public official in the sense
that he works for the government, (2) if, while not employed by government, he otherwise has
pervasive fame or notoriety in the community, or (3) if he has thrust himself into some particular
controversy in order to influence its resolution. Thus, for example, Jerry Falwell is a public figure
and, as a famous case holds, he is barred from recovering against a magazine that portrays him as
having had sex with his mother. Movie stars and famous athletes also qualify as public figures. False
speech directed against public figures is thus protected from libel actions except in quite extreme
circumstances.[61]

It may also be noted that this heightened degree of protection afforded to free expression to comment on public figures
or matters against criminal prosecution for libel has also gained a foothold in Europe. Article 10 of the European
Convention on Human Rights and Fundamental Freedoms provides that [e]veryone has the right to freedom of
expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. [62] The European Court of Human Rights applied this
provision in Lingens v. Austria,[63] in ruling that the Republic of Austria was liable to pay monetary damages as just
satisfaction to a journalist who was found guilty for defamation under the Austrian Criminal Code. [64] The European
Court noted:

[Article 10] is applicable not only to information or ideas that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.
Such are the demands of that pluralism, tolerance and broadmindedness without which there is no
democratic society. . . . These principles are of particular importance as far as the press is concerned.
 Whilst the press must not overstep the bounds set, inter alia, for the protection of the reputation of
others, it is nevertheless incumbent on it to impart information and ideas on political issues just as
on those in other areas of public interest. Not only does the press have the task of imparting such
information and ideas: the public also has the right to receive them. . . . [65]

The international trend in diminishing the scope, if not the viability, of criminal libel prosecutions is clear. Most
pertinently, it is also evident in our own acceptance in this jurisdiction of the principles applied by the U.S. Supreme
Court in cases such as New York Times and Garrison.

Particularly, this Court has accepted the proposition that the actual malice standard governs the prosecution of criminal
libel cases concerning public figures. In Adiong v. COMELEC,[66] the Court cited New York Times in noting that [w]e
have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.[67] The
Court was even more explicit in its affirmation of New York Times in Vasquez v. Court of Appeals.[68] Speaking
through Justice Mendoza:

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official
conduct, unless the public official concerned proves that the statement was made with actual malice
that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court
has cited with approval in several of its own decisions.[ [69]] This is the rule of "actual malice." In
this case, the prosecution failed to prove not only that the charges made by petitioner were false but
also that petitioner made them with knowledge of their falsity or with reckless disregard of whether
they were false or not.[70]

The Court has likewise extended the actual malice rule to apply not only to public officials, but also to public

figures. In Ayer Productions Pty. Ltd. v. Capulong,[71] the Court cited with approval the following definition of a public
figure propounded by an American textbook on torts:

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by
adopting a profession or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved some degree of reputation
by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist,
or any other entertainer. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived
at a position where public attention is focused upon him as a person. [72]
Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a dramatized account of
the 1986 EDSA Revolution. Nonetheless, its definition of a public figure is important to this case, as it clearly
establishes that even non-governmental officials are considered public figures. In fact, the definition propounded
in Ayer was expressly applied by the Court in Borjal v. Court of Appeals[73] in ascertaining whether the complainant
therein was a public figure, thus warranting the application of the actual malice test. [74]

We considered the following proposition as settled in this jurisdiction: that in order to justify a conviction
for criminal libel against a public figure, it must be established beyond reasonable doubt that the libelous statements
were made or published with actual malice, meaning knowledge that the statement was false or with reckless disregard
as to whether or not it was true. As applied to the present petition, there are two main determinants: whether
complainant is a public figure, and assuming that he is, whether the publication of the subject advertisement was made
with actual malice. Sadly, the RTC and the CA failed to duly consider both propositions.

Complainant Is a Public Figure

There should be little controversy in holding that complainant is a public figure. He is a broadcast journalist hosting
two radio programs aired over a large portion of the Visayas and Mindanao. Measured against the definition provided
in Ayer, complainant would definitely qualify as a public figure. Complainant even asserted before the trial court that
his broadcast was listened to widely, hence, his notoriety is unquestionable.

Complainants standing as a public figure is further militated by the contextual circumstances of the case. The
newspaper in question, the Sunday Post, is particularly in circulation in the areas where complainants broadcasts were
aired. Certainly, it cannot be denied that the target audience of the newspaper were the same persons who may have
listened regularly to the complainants broadcast. Even if the sphere of complainants renown is limited in geography,
it is in the same plane as the circulation of the offending newspaper. The extent of complainants ability to influence
hearts and minds through his broadcasts need not be established, only that he has such capacity and willingness to
exert an influence. Complainants volition to practice the radio broadcasting profession necessarily thrusts him in the
public sphere.

Actual Malice Not Proven

As it has been established that complainant was a public figure, it was incumbent upon the prosecution to prove actual
malice on the part of Lim and petitioner when the latter published the article subject matter of the complaint. Set
otherwise, the prosecution must have established beyond reasonable doubt that the defendants knew the statements in
the advertisement was false or nonetheless proceeded with reckless disregard as to publish it whether or not it was
true.

It should thus proceed that if the statements made against the public figure are essentially true, then no conviction for
libel can be had. Any statement that does not contain a provably false factual connotation will receive full
constitutional protection.[75] An examination of the records of this case showed that the prcis of information contained
in the questioned publication were actually true. Thus, complainant himself testified:

Q But is it true that these cases published in Exhibit F-1 are actually existing or previous cases?
A At the time of the publication those cases were terminated, long terminated.

Q But is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed
May 10, 1979 against you?

FISCAL ROCAMORA:

Your Honor, I believe the witness did not understand the question.

COURT: (to Stenographer)

Read back the question.

Q Is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May
10, 1979, against you?
A I really do not know about that accusation.

COURT:

Proceed.

ATTY. FLORIDO:

Q When you came across the publication, did you check if in fact there was a case docketed with
that number against you? Did you check?
A I did not.

Q: Now, is it true that there was a criminal case against you for Estafa docketed as criminal case
No. 17984-R filed July 21, 1982 where the complaints were Pio Go and Mrs. Rosalita
Roldan?
A: Yes.
Q: Is it true that there was also a criminal case filed against you numbered 14843-R for Serious
Physical Injuries, date filed April 28, 1980 which in this publication appears provisionally
dismissed April 14, 1991?
A: That case, I do not have any idea about it.

Q: Did you inquire from the appropriate Court when you received a copy of this to find out if it is
true that these cases were filed against you?
A: As far as I know, in fact, I never received any subpoena or anything about this case.

Q: Yes, but did you upon receipt of Exhibit F-1, did you inquire from the Court whether it is true
that these cases had been recorded as filed against you?
A: Well, as far as I know like the Estafa case, I was already long been acquitted in that case.

Q: You did not answer the question. Will you please answer.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned whether that case exist?
A: Yes.

COURT:

Proceed.

ATTY. FLORIDO:

Q: And you discovered that they were true that this was provisionally dismissed with reference to
14843-R for Serious Physical Injuries. You made inquiries?
A: Yes.

Q: And you also know that Dr. Jovenal Almendras your godfather in the wedding had also filed a
case of Malicious Mischief against you?
A: I know but that was in the past.

Q: Yes, I know that that was in the past, but that is true?
A: Yes.

Q: So, there is nothing false so far as Exhibit F-1?

A: There is no question about that but that is malicious.

Q: Let me see. On the lefthand side of the bottom it says. Not too long ago, I received the following
newspaper clippings courtesy of the Cebu City concerned citizens. The caption story
below tells all. If you know who the businessman alluded to in the caption. Please do tells
me and then, there is a photograph a reprint from Sun Star publication. Do you confirm
that?[76]

xxx

Q: But is it true that you were arrested per this photograph and I quote. In a plush uptown hotel
was disturbed by operatives (right) of the Cebu City Police under Police Lieutenant Col.
Eduardo Ricardo just to serve on the former a warrant of arrest issued by the Cebu RTC
Judge German Lee relative to the suit filed by Apocemco against a businessman. Is it true
that you were arrested?
 A: Yes.

Q: So this photograph is genuine photograph?

A: Yes.

Q: And you claimed that you have a good reputation and that good reputation had been soiled by
the accused in this case. Let me ask you concerning your reputation then. Is it not a fact
that aside from this record of criminal cases appearing in Exhibit F-1, you have also been
at one time or another been accused of several other criminal cases both in and out of the
City of Cebu?
A: Yes, before, 10 years, 15 years ago.

Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have the following per
certificate which we marked as Exhibit 2. Criminal Case Nos. 14843-R for Serious
Physical Injuries, Torralba Cirse Choy; 17984-R, for Estafa; Torralba Cirse R. R-43035
for Malicious Mischief. You will confirm that the same Cirse Torralba and/or Choy
Torralba and/or Cirse R. Torralba mentioned in this certificate refer to your person?
A: Yes.

Q: Now, aside from these criminal cases in the Municipal Trial Courts in Cities, in Cebu City, you
also have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases before the Regional Trial Court of Cebu per
certificate that I marked as Exhibit 3. Is that correct?
A: Yes, but all those cases have already been either acquitted or dismissed. I will present the
certification.

Q: Specifically, these cases has something to do with your character. Let me count 1, 2, 3, 4, 5
cases for Estafa, the 6th case for issuance of a bouncing check, the 7th case is a case for
issuance of a bouncing check; and the 9th is also for issuance of a bouncing check. You
will confirm that?

....

COURT: (to witness)

Q: What happened to those cases?

A: I was acquitted your Honor. I was acquitted in all those cases, some are dismissed, and
fortunately, your Honor, I do not have any conviction. [77]

From the foregoing, it is clear that there was nothing untruthful about what was published in the Sunday
Post. The criminal cases listed in the advertisement as pending against the complainant had indeed been filed. It may
have been inconvenient for the complainant that these matters may have been divulged, yet such information hardly
falls within any realm of privacy complainant could invoke, since the pendency of these criminal charges are actually
matters of public record.

The information, moreover, went into the very character and integrity of complainant to which his listening
public has a very legitimate interest. Complainant hosts a public affairs program, one which he himself claimed was
imbued with public character since it deals with corruptions in government, corruptions by public officials,
irregularities in government in comrades.[78] By entering into this line of work, complainant in effect gave the public
a legitimate interest in his life. He likewise gave them a stake in finding out if he himself had the integrity and character
to have the right to criticize others for their conduct.

In convicting the defendants, the lower courts paid particular heed to Article 354 of the Revised Penal Code,
which provides that every defamatory imputation is presumed to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown. We hold that this provision, as applied to public figures complaining of
criminal libel, must be construed in light of the constitutional guarantee of free expression, and this Courts precedents
upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if
true is not libelous. The provision itself allows for such leeway, accepting as a defense good intention and justifiable
motive. The exercise of free expression, and its concordant assurance of commentary on public affairs and public
figures, certainly qualify as justifiable motive, if not good intention.

It cannot be helped if the commentary protected by the Bill of Rights is accompanied by excessive color or
innuendo. Certainly, persons in possession of truthful facts are not obliged to present the same in bland fashion. These
true facts may be utilized to convince the listener/reader against a particular position, or to even dissuade one against
accepting the credibility of a public figure. Dry facts, by themselves, are hardly stirring. It is the commentary thereupon
that usually animates the discourse which is encouraged by the Constitution as integral to the democratic way of life.
This is replete in many components of our daily life, such as political addresses, televised debates, and even
commercial advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even
expression in its most unsophisticated form. Criminal libel stands as a necessary qualification to any absolutist
interpretation of the free speech clause, if only because it prevents the proliferation of untruths which if unrefuted,
would gain an undue influence in the public discourse. But in order to safeguard against fears that the public debate
might be muted due to the reckless enforcement of libel laws, truth has been sanctioned as a defense, much more in
the case when the statements in question address public issues or involve public figures.

In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New York Times,
has even gone so far as acknowledging:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even
falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of
truly free expression and debate. Consistent with good faith and reasonable care, the press should
not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice
of language. There must be some room for misstatement of fact as well as for misjudgment. Only
by giving them much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held
 A newspaper especially one national in reach and coverage, should be
free to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another on
criminal or civil charges for libel, so long as the newspaper respects and keeps
within the standards of morality and civility prevailing within the general
community.

To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required to allow an
adequate margin of error by protecting some inaccuracies. It is for the same reason that the New
York Times doctrine requires that liability for defamation of a public official or public figure may
not be imposed in the absence of proof of "actual malice" on the part of the person making the
libelous statement.[79]

To this end, the publication of the subject advertisement by petitioner and Lim cannot be deemed by this
Court to have been done with actual malice. Aside from the fact that the information contained in said publication was
true, the intention to let the public know the character of their radio commentator can at best be subsumed under the
mantle of having been done with good motives and for justifiable ends. The advertisement in question falls squarely
within the bounds of constitutionally protected expression under Section 4, Article III, and thus, acquittal is mandated.

WHEREFORE, premises considered, the petition is GRANTED. The assailed Decision and Resolution of
the Court of Appeals dated 29 July 1996 and 3 October 1996, respectively, in CA G.R. CR No. 16413 are
REVERSED and SET ASIDE insofar as they affect petitioner. The Decision of the Regional Trial Court of Cebu City,
promulgated on 17 May 1994, as regards petitioner is likewise REVERSED and SET ASIDE and petitioner is
ACQUITTED of the charge of libel therein. No costs.

SO ORDERED.
 EN BANC

A.M. No. P-02-1651 June 22, 2006

(Formerly OCA I.P.I. No. 00-1021-P)

ALEJANDRO ESTRADA, Complainant,

vs.
SOLEDAD S. ESCRITOR, Respondent.

RESOLUTION

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands before
the Court invoking her religious freedom and her Jehovah God in a bid to save her family – united without the
benefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield its power to regulate her
behavior and protect its interest in marriage and family and the integrity of the courts where respondent is an
employee. How the Court will tilt the scales of justice in the case at bar will decide not only the fate of respondent
Escritor but of other believers coming to Court bearing grievances on their free exercise of religion. This case comes
to us from our remand to the Office of the Court Administrator on August 4, 2003. 1

I. THE PAST PROCEEDINGS

In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F. Caoibes, Jr.,
presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of respondent Soledad
Escritor, court interpreter in said court, for living with a man not her husband, and having borne a child within this
live-in arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes the image of the
court, thus she should not be allowed to remain employed therein as it might appear that the court condones her
act.2 Consequently, respondent was charged with committing "disgraceful and immoral conduct" under Book V,
Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. 3

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husband
having died in 1998.4 She admitted that she started living with Luciano Quilapio, Jr. without the benefit of marriage
more than twenty years ago when her husband was still alive but living with another woman. She also admitted that
she and Quilapio have a son.5 But as a member of the religious sect known as the Jehovah’s Witnesses and the
Watch Tower and Bible Tract Society, respondent asserted that their conjugal arrangement is in conformity with
their religious beliefs and has the approval of her congregation.6 In fact, after ten years of living together, she
executed on July 28, 1991, a "Declaration of Pledging Faithfulness." 7

For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned by their
spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the
congregation all over the world except in countries where divorce is allowed. As laid out by the tenets of their faith,
the Jehovah’s congregation requires that at the time the declarations are executed, the couple cannot secure the civil
authorities’ approval of the marital relationship because of legal impediments. Only couples who have been baptized
and in good standing may execute the Declaration, which requires the approval of the elders of the congregation. As
a matter of practice, the marital status of the declarants and their respective spouses’ commission of adultery are
investigated before the declarations are executed.8 Escritor and Quilapio’s declarations were executed in the usual
and approved form prescribed by the Jehovah’s Witnesses, 9 approved by elders of the congregation where the
declarations were executed,10 and recorded in the Watch Tower Central Office.11

Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the validity
of the declarations ceases, and the couple should legalize their union. In Escritor’s case, although she was widowed
in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to remarry.
Thus, their declarations remained valid.12 In sum, therefore, insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.

By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her conjugal
arrangement does not constitute disgraceful and immoral conduct for which she should be held administratively
liable,13 the Court had to determine the contours of religious freedom under Article III, Section 5 of the Constitution,
which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever
be allowed. No religious test shall be required for the exercise of civil or political rights.

A. Ruling

In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of the
religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving religious
freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and
framework underlying the religion clauses in our Constitution; and (2) in deciding respondent’s plea of exemption
based on the Free Exercise Clause (from the law with which she is administratively charged), it is the compelling
state interest test, the strictest test, which must be applied.14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of
whether respondent was to be held administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more "compelling interest" to defeat the claim of the respondent to religious freedom.
Thus, in the decision dated August 4, 2003, we remanded the complaint to the Office of the Court Administrator
(OCA), and ordered the Office of the Solicitor General (OSG) to intervene in the case so it can:

(a) examine the sincerity and centrality of respondent’s claimed religious belief and practice;

(b) present evidence on the state’s "compelling interest" to override respondent’s religious belief and
practice; and

(c) show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s
religious freedom. 15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS
COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST
APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These
issues have already been ruled upon prior to the remand, and constitute "the law of the case" insofar as they resolved
the issues of which framework and test are to be applied in this case, and no motion for its reconsideration having
been filed.16 The only task that the Court is left to do is to determine whether the evidence adduced by the State
proves its more compelling interest. This issue involves a pure question of fact.

B. Law of the case

Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this case interpreting the religious clauses of
the Constitution, made more than two years ago, is misplaced to say the least. Since neither the complainant,
respondent nor the government has filed a motion for reconsideration assailing this ruling, the same has attained
finality and constitutes the law of the case. Any attempt to reopen this final ruling constitutes a crass contravention
of elementary rules of procedure. Worse, insofar as it would overturn the parties’ right to rely upon our
interpretation which has long attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice Carpio’s
belated attempts to disturb settled issues, and that he had timely presented his arguments, the results would still be
the same.

We review the highlights of our decision dated August 4, 2003.

1. Old World Antecedents

In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion clauses,
because "one cannot understand, much less intelligently criticize the approaches of the courts and the political
branches to religious freedom in the recent past in the United States without a deep appreciation of the roots of these
controversies in the ancient and medieval world and in the American experience." 17 We delved into the conception
of religion from primitive times, when it started out as the state

itself, when the authority and power of the state were ascribed to God. 18 Then, religion developed on its own and
became superior to the state,19 its subordinate,20 and even becoming an engine of state policy.21

We ascertained two salient features in the review of religious history: First, with minor exceptions, the history of
church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name
of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance
of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious
princes and emperors in exchange for religion’s invaluable service. This was the context in which the unique
experiment of the principle of religious freedom and separation of church and state saw its birth in American
constitutional democracy and in human history. 22

Strictly speaking, the American experiment of freedom and separation was not translated in the First Amendment.
That experiment had been launched four years earlier, when the founders of the republic carefully withheld from the
new national government any power to deal with religion. As James Madison said, the national government had no
"jurisdiction" over religion or any "shadow of right to intermeddle" with it. 23

The omission of an express guaranty of religious freedom and other natural rights, however, nearly prevented the
ratification of the Constitution. The restriction had to be made explicit with the adoption of the religion clauses in
the First Amendment as they are worded to this day. Thus, the First Amendment did not take away or abridge any
power of the national government; its intent was to make express the absence of power. 24 It commands, in two parts
(with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause),
viz:

25
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory purposes.
They have a single goal—to promote freedom of individual religious beliefs and practices. In simplest terms, the
Free Exercise Clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and
practice, while the Establishment Clause prohibits government from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the two religion clauses were intended to deny government the power
to use either the carrot or the stick to influence individual religious beliefs and practices. 26

In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion as an
engine to promote state interests, to the principle of non-establishment to allow the free exercise of religion.

2. Religion Clauses in the U.S. Context

The Court then turned to the religion clauses’ interpretation and construction in the United States, not because we
are bound by their interpretation, but because the U.S. religion clauses are the precursors to the Philippine religion
clauses, although we have significantly departed from the U.S. interpretation as will be discussed later on.

At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with
inconsistencies whether within a Court decision or across decisions. For while there is widespread agreement
regarding the value of the First Amendment religion clauses, there is an equally broad disagreement as to what these
clauses specifically require, permit and forbid. No agreement has been reached by those who have studied the
religion clauses as regards its exact meaning and the paucity of records in the U.S. Congress renders it difficult to
ascertain its meaning.27

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion clauses.
First is the standard of separation, which may take the form of either (a) strict separation or (b) the tamer version of
strict neutrality or separation, or what Mr. Justice Carpio refers to as the second theory of governmental neutrality.
Although the latter form is not as hostile to religion as the former, both are anchored on the Jeffersonian premise that
a "wall of separation" must exist between the state and the Church to protect the state from the church. 28 Both
protect the principle of church-state separation with a rigid reading of the principle. On the other hand, the second
standard, the benevolent neutrality or accommodation, is buttressed by the view that the wall of separation is meant
to protect the church from the state. A brief review of each theory is in order.

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant to protect the state from the church, and
the state’s hostility towards religion allows no interaction between the two. According to this Jeffersonian view, an
absolute barrier to formal interdependence of religion and state needs to be erected. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate
burdens the programs placed on believers.29 Only the complete separation of religion from politics would eliminate
the formal influence of religious institutions and provide for a free choice among political views, thus a strict "wall
of separation" is necessary. 30

Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary
practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge
amounts of mostly indirect aid from religion.31 For example, less than twenty-four hours after Congress adopted the
First Amendment’s prohibition on laws respecting an establishment of religion, Congress decided to express its
thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential
proclamation declaring a national day of Thanksgiving and Prayer. 32 Thus, strict separationists are caught in an
awkward position of claiming a constitutional principle that has never existed and is never likely to. 33

The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the governmental
neutrality theory) finds basis in Everson v. Board of Education, 34 where the Court declared that Jefferson’s "wall of
separation" encapsulated the meaning of the First Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the "wall of separation" does not require the state to be their adversary. Rather, the state
must be neutral in its relations with groups of religious believers and non-believers. "State power is no more to be
used so as to handicap religions than it is to favor them."35 The strict neutrality approach is not hostile to religion,
but it is strict in holding that religion may not be used as a basis for classification for purposes of governmental
action, whether the action confers rights or privileges or imposes duties or obligations. Only secular criteria may be
the basis of government action. It does not permit, much less require, accommodation of secular programs to
religious belief.36

The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment Clause, it
could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v. Schempp, 37 strict neutrality could lead to "a
brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious" which is
prohibited by the Constitution. 38 Professor Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The
Framers, whatever specific applications they may have intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or science.
The strict neutrality approach all but erases this distinction. Thus it is not surprising that the [U.S.] Supreme Court
has rejected strict neutrality, permitting and sometimes mandating religious classifications. 39

Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality, is that
while the Jeffersonian wall of separation "captures the spirit of the American ideal of church-state separation," in
real life, church and state are not and cannot be totally separate. This is all the more true in contemporary times
when both the government and religion are growing and expanding their spheres of involvement and activity,
resulting in the intersection of government and religion at many points. 40

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of separation,"
associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect
the state from the church, the wall is meant to protect the church from the state. 41 This doctrine was expressed in
Zorach v. Clauson,42 which held, viz:

The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and
State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be
aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a
holiday; "so help me God" in our courtroom oaths- these and all other references to the Almighty that run through
our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic
could even object to the supplication with which the Court opens each session: "God save the United States and this
Honorable Court."

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as
one chooses. . . When the state encourages religious instruction or cooperates with religious authorities by adjusting
the schedule of public events, it follows the best of our traditions. For it then respects the religious nature of our
people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight
against efforts to widen their effective scope of religious influence. 43

Benevolent neutrality recognizes that religion plays an important role in the public life of the United States as shown
by many traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among
these are the inscription of "In God We Trust" on American currency; the recognition of America as "one nation
under God" in the official pledge of allegiance to the flag; the Supreme Court’s time-honored practice of opening
oral argument with the invocation "God save the United States and this Honorable Court"; and the practice of
Congress and every state legislature of paying a chaplain, usually of a particular Protestant denomination, to lead
representatives in prayer. These practices clearly show the preference for one theological viewpoint—the existence
of and potential for intervention by a god—over the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the
treatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moral
dimension. 44
Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S. Court
declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the legislature in daily
prayers,45 or requiring employers to pay workers compensation when the resulting inconsistency between work and
Sabbath leads to discharge;46 for government to give money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior;47 or to provide religious school pupils with books;48 or bus rides to
religious schools;49 or with cash to pay for state-mandated standardized tests.50

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in relation to
governmental action, almost invariably in the form of legislative acts.

Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as unconstitutional,
either because it violates the Free Exercise Clause or the Establishment Clause or both. This is true whether one
subscribes to the separationist approach or the benevolent neutrality or accommodationist approach.

But the more difficult religion cases involve legislative acts which have a secular purpose and general applicability,
but may incidentally or inadvertently aid or burden religious exercise. Though the government action is not
religiously motivated, these laws have a "burdensome effect" on religious exercise.

The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of
religion may be allowed, not to promote the government’s favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. The purpose of accommodations is to remove a burden on, or
facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the "government [may]
take religion into account…to exempt, when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish." 51 In the ideal world, the legislature
would recognize the religions and their practices and would consider them, when practical, in enacting laws of
general application. But when the legislature fails to do so, religions that are threatened and burdened may turn to
the courts for protection.52

Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially
neutral law, but an exemption from its application or its "burdensome effect," whether by the legislature or the
courts.53 Most of the free exercise claims brought to the U.S. Court are for exemption, not invalidation of the facially
neutral law that has a "burdensome" effect.54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the case of
Sherbert v. Verner,55 which ruled that state regulation that indirectly restrains or punishes religious belief or conduct
must be subjected to strict scrutiny under the Free Exercise Clause. 56 According to Sherbert, when a law of general
application infringes religious exercise, albeit incidentally, the state interest sought to be promoted must be so
paramount and compelling as to override the free exercise claim. Otherwise, the Court itself will carve out the
exemption.

In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her
employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She
sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits
could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by religious
principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme
Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional right of free exercise, or because any
incidental burden on the free exercise of appellant’s religion may be justified by a "compelling state interest in the
regulation of a subject within the State’s constitutional power to regulate. . . ."57 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational
relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n this highly
sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for
permissible limitation.’"58 The Court found that there was no such compelling state interest to override Sherbert’s
religious liberty. It added that even if the state could show that Sherbert’s exemption would pose serious detrimental
effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show
that no alternative means of regulations would address such detrimental effects without infringing religious liberty.
The state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from the
Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherbert’s benefits would force her to choose between receiving benefits and
following her religion. This choice placed "the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship." This germinal case of Sherbert firmly established the
exemption doctrine, 59 viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws
conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interest"
intervenes.

Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a sincerely held
religious belief or practice, the state must justify the burden by demonstrating that the law embodies a compelling
interest, that no less restrictive alternative exists, and that a religious exemption would impair the state’s ability to
effectuate its compelling interest. As in other instances of state action affecting fundamental rights, negative impacts
on those rights demand the highest level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test
resulted in court-mandated religious exemptions from facially-neutral laws of general application whenever
unjustified burdens were found. 60

Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious exemption was in order,
notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny, the Court
overturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance laws. The Court,
in effect, granted exemption from a neutral, criminal statute that punished religiously motivated conduct. Chief
Justice Burger, writing for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not
deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to
override the interest claiming protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had specially and firmly fixed the right
of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying these two provisions relating to religion
have been zealously protected, sometimes even at the expense of other interests of admittedly high social
importance. . .

The essence of all that has been said and written on the subject is that only those interests of the highest order and
those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the
Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare,
or the Federal government in the exercise of its delegated powers . . . But to agree that religiously grounded conduct
must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected
by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore, does not become easier because respondents were
convicted for their "actions" in refusing to send their children to the public high school; in this context belief and
action cannot be neatly confined in logic-tight compartments. . . 62

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were subject to
heightened scrutiny or compelling interest test if government substantially burdened the exercise of religion; (b)
heightened scrutiny or compelling interest test governed cases where the burden was direct, i.e., the exercise of
religion triggered a criminal or civil penalty, as well as cases where the burden was indirect, i.e., the exercise of
religion resulted in the forfeiture of a government benefit;63 and (c) the Court could carve out accommodations or
exemptions from a facially neutral law of general application, whether general or criminal.

The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct beyond speech, press,
or worship was included in the shelter of freedom of religion. Neither Sherbert’s refusal to work on the Sabbath nor
the Amish parents’ refusal to let their children attend ninth and tenth grades can be classified as conduct protected
by the other clauses of the First Amendment. Second, indirect impositions on religious conduct, such as the denial of
twenty-six weeks of unemployment insurance benefits to Adel Sherbert, as well as direct restraints, such as the
criminal prohibition at issue in Yoder, were prohibited. Third, as the language in the two cases indicate, the
protection granted was extensive. Only extremely strong governmental interests justified impingement on religious
conduct, as the absolute language of the test of the Free Exercise Clause suggests. 64

Fourth, the strong language was backed by a requirement that the government provide proof of the important interest
at stake and of the dangers to that interest presented by the religious conduct at issue. Fifth, in determining the injury
to the government’s interest, a court was required to focus on the effect that exempting religious claimants from the
regulation would have, rather than on the value of the regulation in general. Thus, injury to governmental interest
had to be measured at the margin: assuming the law still applied to all others, what would be the effect of exempting
the religious claimant in this case and other similarly situated religious claimants in the future? Together, the fourth
and fifth elements required that facts, rather than speculation, had to be presented concerning how the government’s
interest would be harmed by excepting religious conduct from the law being challenged. 65

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline to
prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance, by not allowing speculation about the
effects of a decision adverse to those interests nor accepting that those interests would be defined at a higher level of
generality than the constitutional interests on the other side of the balance. 66

Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to
religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with religious practices. Although the members of
the U.S. Court often disagreed over which governmental interests should be considered compelling, thereby
producing dissenting and separate opinions in religious conduct cases, this general test established a strong
presumption in favor of the free exercise of religion. 67 Most scholars and courts agreed that under Sherbert and
Yoder, the Free Exercise Clause provided individuals some form of heightened scrutiny protection, if not always a
compelling interest one.68 The 1990 case of Employment Division, Oregon Department of Human Resources v.
Smith,69 drastically changed all that.

Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a hallucinogenic
substance. Specifically, individuals challenged the state’s determination that their religious use of peyote, which
resulted in their dismissal from employment, was misconduct disqualifying them from receipt of unemployment
compensation benefits. 70

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption from
an otherwise valid law. Scalia said that "[w]e have never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the
record of more than a century of our free exercise jurisprudence contradicts that proposition." 71 Scalia thus declared
"that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral
law of general applicability of the ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).’" 72

Justice Scalia’s opinion then reviewed the cases where free exercise challenges had been upheld—such as Cantwell,
Murdock, Follet, Pierce, and Yoder—and said that none involved the free exercise clause claims alone. All involved
"the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the
press, or the right of parents to direct the education of their children." 73 The Court said that Smith was
distinguishable because it did not involve such a "hybrid situation," but was a free exercise claim "unconnected with
any communicative activity or parental right." 74

Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of unemployment
benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that "[e]ven if we were inclined
to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law." 75

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability that
burden religion. Justice Scalia said that "[p]recisely because ‘we are a cosmopolitan nation made up of people of
almost conceivable religious preference,’ and precisely because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of
conduct that does not protect an interest of the highest order." The Court said that those seeking religious
exemptions from laws should look to the democratic process for protection, not the courts. 76

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling justification
approach were abandoned for evaluating laws burdening religion; neutral laws of general applicability only have to
meet the rational basis test, no matter how much they burden religion. 77

Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest test,
asserting that "(t)he compelling state interest test effectuates the First Amendment’s command that religious liberty
is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments
upon this liberty, whether direct or indirect, unless required by clear and compelling government interest ‘of the
highest order.’"78 She said that strict scrutiny is appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a
pluralistic society." 79

Justice O’Connor also disagreed with the majority’s description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that, "First Amendment was enacted precisely to
protect the rights of those whose religious practice are not shared by the majority and may be viewed with
hostility." 80

Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissenting
Justices agreed with Justice O’Connor that the majority had mischaracterized precedents, such as in describing
Yoder as a "hybrid" case rather than as one under the free exercise clause. The dissent also argued that strict scrutiny
should be used in evaluating government laws burdening religion. 81

Criticism of Smith was intense and widespread.82 Academics, Justices, and a bipartisan majority of Congress noisily
denounced the decision.83 Smith has the rather unusual distinction of being one case that is almost universally
despised (and this is not too strong a word) by both the liberals and conservatives.84 Liberals chasten the Court for
its hostility to minority faiths which, in light of Smith’s general applicability rule, will allegedly suffer at the hands
of the majority faith whether through outright hostility or neglect. Conservatives bemoan the decision as an assault
on religious belief leaving religion, more than ever, subject to the caprice of an ever more secular nation that is
increasingly hostile to religious belief as an oppressive and archaic anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.86 First, the First amendment was intended to protect minority religions
from the tyranny of the religious and political majority. 87 Critics of Smith have worried about religious minorities,
who can suffer disproportionately from laws that enact majoritarian mores.88 Smith, in effect would allow
discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative
clout,89 contrary to the original theory of the First Amendment. 90 Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions and Smith virtually wiped out their judicial
recourse for exemption.91 Second, Smith leaves too much leeway for pervasive welfare-state regulation to burden
religion while satisfying neutrality. After all, laws not aimed at religion can hinder observance just as effectively as
those that target religion.92 Government impairment of religious liberty would most often be of the inadvertent kind
as in Smith considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy
is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would
be left almost meaningless.93 Third, the Reynolds-Gobitis-Smith94 doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental religious convictions of an individual in
order to pursue some trivial state economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective without serious inadvertent impact on
religion.95

At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and limiting
the term "religion" in today’s pluralistic society, and (2) the belief that courts have no business determining the
significance of an individual’s religious beliefs. For the Smith Court, these two concerns appear to lead to the
conclusion that the Free Exercise Clause must protect everything or it must protect virtually nothing. As a result, the
Court perceives its only viable options are to leave free exercise protection to the political process or to allow a
"system in which each conscience is a law unto itself." 96 The Court’s characterization of its choices have been
soundly rejected as false, viz:

If one accepts the Court’s assumption that these are the only two viable options, then admittedly, the Court has a
stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult to apply and this
should not be applied at all. The Constitution does not give the judiciary the option of simply refusing to interpret its
provisions. The First Amendment dictates that free exercise of "religion" must be protected. Accordingly, the
Constitution compels the Court to struggle with the contours of what constitutes "religion." There is no
constitutional opt-out provision for constitutional words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large area of
middle ground exists between the Court’s two opposing alternatives for free exercise jurisprudence. Unfortunately,
this middle ground requires the Court to tackle difficult issues such as defining religion and possibly evaluating the
significance of a religious belief against the importance of a specific law. The Court describes the results of this
middle ground where "federal judges will regularly balance against the importance of general laws the significance
of religious practice," and then dismisses it as a "parade of horribles" that is too "horrible to contemplate."

It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious
individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity and significance rather
than acquiesce to the Court’s approach of simply refusing to grant any constitutional significance to their beliefs at
all. If the Court is concerned about requiring lawmakers at times constitutionally to exempt religious individuals
from statutory provisions, its concern is misplaced. It is the lawmakers who have sought to prevent the Court from
dismantling the Free Exercise Clause through such legislation as the [Religious Freedom Restoration Act of 1993],
and in any case, the Court should not be overly concerned about hurting legislature’s feelings by requiring their laws
to conform to constitutional dictates. Perhaps the Court is concerned about putting such burden on judges. If so, it
would truly be odd to say that

requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge should be
expected to fulfill.97

Parenthetically, Smith’s characterization that the U.S. Court has "never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate"—an
assertion which Mr. Justice Carpio adopted unequivocally in his dissent—has been sharply criticized even implicitly
by its supporters, as blatantly untrue. Scholars who supported Smith frequently did not do so by opposing the
arguments that the Court was wrong as a matter of original meaning [of the religion clauses] or that the decision
conflicted with precedent [i.e. the Smith decision made shocking use of precedent]—those points were often
conceded. 98

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in Yoder, by
asserting that these were premised on two constitutional rights combined—the right of parents to direct the
education of their children and the right of free exercise of religion. Under the Court’s opinion in Smith, the right of
free exercise of religion standing alone would not allow Amish parents to disregard the compulsory school
attendance law, and under the Court’s opinion in Yoder, parents whose objection to the law was not religious would
also have to obey it. The fatal flaw in this argument, however, is that if two constitutional claims will fail on its own,
how would it prevail if combined? 99 As for Sherbert, the Smith Court attempted to limit its doctrine as applicable
only to denials of unemployment compensation benefits where the religiously-compelled conduct that leads to job
loss is not a violation of criminal law. And yet, this is precisely why the rejection of Sherbert was so damaging in its
effect: the religious person was more likely to be entitled to constitutional protection when forced to choose between
religious conscience and going to jail than when forced to choose between religious conscience and financial
loss. 100

Thus, the Smith decision elicited much negative public reaction especially from the religious community, and
commentaries insisted that the Court was allowing the Free Exercise Clause to disappear. 101 So much was the uproar
that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. 102 The
RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise claims. Indeed, the findings
section of the Act notes that Smith "virtually eliminated the requirement that the government justify burdens on
religious exercise imposed by laws neutral toward religion." 103 The Act declares that its purpose is to restore the
compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in
all cases where free exercise of religion is substantially burdened; and to provide a claim of defense to a person
whose religious exercise is substantially burdened by government. 104 The RFRA thus sought to overrule Smith and
make strict scrutiny the test for all free exercise clause claims. 105

In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling that
Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled that
Congress is empowered to enact laws "to enforce the amendment," but Congress is not "enforcing" when it creates
new constitutional rights or expands the scope of rights. 107

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect for the
constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:

"Values that are protected against governmental interference through enshrinement in the Bill of Rights are not
thereby banished from the political process. Just as society believes in the negative protection accorded to the press
by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so
also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of
that value in its legislation as well."

By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous Congress.
Contrary to the Court’s characterization of the RFRA as a kind of usurpation of the judicial power to say what the
Constitution means, the law offered no definition of Free Exercise, and on its face appeared to be a procedural
measure establishing a standard of proof and allocating the duty of meeting it. In effect, the Court ruled that
Congress had no power in the area of religion. And yet, Free Exercise exists in the First Amendment as a negative
on Congress. The power of Congress to act towards the states in matters of religion arises from the Fourteenth
Amendment. 108

From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover, if we
consider the history of the incorporation of the religion clauses in the U.S., the decision in Smith is grossly
inconsistent with the importance placed by the framers on religious faith. Smith is dangerous precedent because it
subordinates fundamental rights of religious belief and practice to all neutral, general legislation. Sherbert
recognized the need to protect religious exercise in light of the massive increase in the size of government, the
concerns within its reach, and the number of laws administered by it. However, Smith abandons the protection of
religious exercise at a time when the scope and reach of government has never been greater. It has been pointed out
that Smith creates the legal framework for persecution: through general, neutral laws, legislatures are now able to
force conformity on religious minorities whose practice irritate or frighten an intolerant majority. 109

The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating the Free
Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly where it would
be if the religion clauses did not exist in the Bill of Rights. Like most protections found in the Bill of Rights, the
religion clauses of the First Amendment are most important to those who cannot prevail in the political process. The
Court in Smith ignores the fact that the protections found in the Bill of Rights were deemed too important to leave to
the political process. Because mainstream religions generally have been successful in protecting their interests
through the political process, it is the non-mainstream religions that are adversely affected by Smith. In short, the
U.S. Supreme Court has made it clear to such religions that they should not look to the First Amendment for
religious freedom. 110

(3) Accommodation under the Religion Clauses

A free exercise claim could result to three kinds of accommodation: (a) those which are found to be constitutionally
compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or legislative, i.e., not
required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause; and (c) those which the
religion clauses prohibit.111

Mandatory accommodation results when the Court finds that accommodation is required by the Free Exercise
Clause, i.e, when the Court itself carves out an exemption. This accommodation occurs when all three conditions of
the compelling interest test are met, i.e, a statute or government action has burdened claimant’s free exercise of
religion, and there is no doubt as to the sincerity of the religious belief; the state has failed to demonstrate a
particularly important or compelling governmental goal in preventing an exemption; and that the state has failed to
demonstrate that it used the least restrictive means. In these cases, the Court finds that the injury to religious
conscience is so great and the advancement of public purposes is incomparable that only indifference or hostility
could explain a refusal to make exemptions. Thus, if the state’s objective could be served as well or almost as well
by granting an exemption to those whose religious beliefs are burdened by the regulation, the Court must grant the
exemption. The Yoder case is an example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment compensation plan must accommodate the
religious convictions of Sherbert.112

In permissive accommodation, the Court finds that the State may, but is not required to, accommodate religious
interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the constitutionality of
tax exemption given by New York to church properties, but did not rule that the state was required to provide tax
exemptions. The Court declared that "(t)he limits of permissible state accommodation to religion are by no means
co-extensive with the noninterference mandated by the Free Exercise Clause." 113 Other examples are Zorach v.
Clauson,114 allowing released time in public schools and Marsh v. Chambers, 115 allowing payment of legislative
chaplains from public funds. Parenthetically, the Court in Smith has ruled that this is the only accommodation
allowed by the Religion Clauses.

Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited accommodation.
In this case, the Court finds that establishment concerns prevail over potential accommodation interests. To say that
there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.116 An example where accommodation was prohibited is McCollum v. Board of
Education,117 where the Court ruled against optional religious instruction in the public school premises. 118
Given that a free exercise claim could lead to three different results, the question now remains as to how the Court
should determine which action to take. In this regard, it is the strict scrutiny-compelling state interest test which is
most in line with the benevolent neutrality-accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to carry out
one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Religious
freedom is seen as a substantive right and not merely a privilege against discriminatory legislation. With religion
looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under
certain circumstances.

Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free exercise
disputes arise commonly when a law that is religiously neutral and generally applicable on its face is argued to
prevent or burden what someone’s religious faith requires, or alternatively, requires someone to undertake an act
that faith would preclude. In essence, then, free exercise arguments contemplate religious exemptions from
otherwise general laws.119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the First
Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society.120Underlying the compelling state interest test is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny.121

In its application, the compelling state interest test follows a three-step process, summarized as follows:

If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the
burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of some
important (or ‘compelling’) secular objective and that it is the least restrictive means of achieving that objective. If
the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimant’s beliefs must be ‘sincere’, but they need not necessarily be
consistent, coherent, clearly articulated, or congruent with those of the claimant’s religious denomination. ‘Only
beliefs rooted in religion are protected by the Free Exercise Clause’; secular beliefs, however sincere and
conscientious, do not suffice.122

In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the separationist
approach, or the benevolent neutrality approach. The benevolent neutrality approach has also further been split by
the view that the First Amendment requires accommodation, or that it only allows permissible legislative
accommodations. The current prevailing view as pronounced in Smith, however, is that that there are no required
accommodation under the First Amendment, although it permits of legislative accommodations.

3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice

a. US Constitution and jurisprudence vis-à-vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately clear
that one cannot simply conclude that we have adopted—lock, stock and barrel—the religion clauses as embodied in
the First Amendment, and therefore, the U.S. Court’s interpretation of the same. Unlike in the U.S. where legislative
exemptions of religion had to be upheld by the U.S. Supreme Court as constituting permissive accommodations,
similar exemptions for religion are mandatory accommodations under our own constitutions. Thus, our 1935, 1973
and 1987 Constitutions contain provisions on tax exemption of church property, 123 salary of religious officers in
government institutions,124 and optional religious instruction.125 Our own preamble also invokes the aid of a divine
being.126 These constitutional provisions are wholly ours and have no counterpart in the U.S. Constitution or its
amendments. They all reveal without doubt that the Filipino people, in adopting these constitutions, manifested their
adherence to the benevolent neutrality approach that requires accommodations in interpreting the religion clauses. 127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted that the
1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935 Constitution is a
misreading of the ponencia. What the ponencia pointed out was that even as early as 1935, or more than three
decades before the U.S. Court could validate the exemption in Walz as a form or permissible accommodation, we
have already incorporated the same in our Constitution, as a mandatory accommodation.

There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S. Constitution, insofar as
religious accommodations are concerned. It is indubitable that benevolent neutrality-accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the Philippine Constitution. 128 As stated in
our Decision, dated August 4, 2003:

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the
First Amendment of the U.S. Constitution xxxx Philippine jurisprudence and commentaries on the religious clauses
also continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the
two identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or a
benevolent neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might
conclude that as the history of the First Amendment as narrated by the Court in Everson supports the separationist
approach, Philippine jurisprudence should also follow this approach in light of the Philippine religion clauses’
history. As a result, in a case where the party claims religious liberty in the face of a general law that inadvertently
burdens his religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall of
separation would not be breached if the Court grants him an exemption. These conclusions, however, are not and
were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole
and apparently conflicting provisions should be reconciled and harmonized in a manner that will give to all of them
full force and effect. From this construction, it will be ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution. 129 [citations omitted]

We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of the religion clauses to
effectively deny accommodations on the sole basis that the law in question is neutral and of general application. For
even if it were true that "an unbroken line of U.S. Supreme Court decisions" has never held that "an individual’s
religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State
is free to regulate," our own Constitutions have made significant changes to accommodate and exempt religion.
Philippine jurisprudence shows that the Court has allowed exemptions from a law of general application, in effect,
interpreting our religion clauses to cover both mandatory and permissive accommodations. 130

To illustrate, in American Bible Society v. City of Manila,131 the Court granted to plaintiff exemption from a law of
general application based on the Free Exercise Clause. In this case, plaintiff was required by an ordinance to secure
a mayor’s permit and a municipal license as ordinarily required of those engaged in the business of general
merchandise under the city’s ordinances. Plaintiff argued that this amounted to "religious censorship and restrained
the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other religious
literature to the people of the Philippines." Although the Court categorically held that the questioned ordinances
were not applicable to plaintiff as it was not engaged in the business or occupation of selling said "merchandise" for
profit, it also ruled that applying the ordinance to plaintiff and requiring it to secure a license and pay a license fee or
tax would impair its free exercise of religious profession and worship and its right of dissemination of religious
beliefs "as the power to tax the exercise of a privilege is the power to control or suppress its enjoyment." The
decision states in part, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the
right to disseminate religious information. Any restraint of such right can only be justified like other restraints of
freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State
has the right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of Schools. 132 The
case involved several Jehovah’s Witnesses who were expelled from school for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the
religious freedom issue, a unanimous Court overturned an earlier ruling denying such exemption,133 using the "grave
and imminent danger" test, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late
Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent.
Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. 134 (emphases
supplied)

In these two cases, the Court itself carved out an exemption from a law of general application, on the strength
directly of the Free Exercise Clause.

We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde Rope
Workers Union135 is an example of the application of Mr. Justice Carpio’s theory of permissive accommodation,
where religious exemption is granted by a legislative act. In Victoriano, the constitutionality of Republic Act No.
3350 was questioned. The said R.A. exempt employees from the application and coverage of a closed shop
agreement—mandated in another law—based on religious objections. A unanimous Court upheld the
constitutionality of the law, holding that "government is not precluded from pursuing valid objectives secular in
character even if the incidental result would be favorable to a religion or sect." Interestingly, the secular purpose of
the challenged law which the Court upheld was the advancement of "the constitutional right to the free exercise of
religion."136

Having established that benevolent neutrality-accommodation is the framework by which free exercise cases must
be decided, the next question then turned to the test that should be used in ascertaining the limits of the exercise of
religious freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases
involving purely conduct based on religious belief, as in the case at bar, the compelling state interest test, is proper,
viz:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of
society and law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and present danger"
test in the maiden case of American Bible Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one form or another, religious speech as this test
is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law. Gerona, however, which was the
authority cited by German has been overruled by Ebralinag which employed the "grave and immediate danger" test.
Victoriano was the only case that employed the "compelling state interest" test, but as explained previously, the use
of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the
"clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible
or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case
involves purely conduct arising from religious belief. The "compelling state interest" test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the state’s interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the
state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson.
This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, thus
the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish a
government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to
religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would
allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which
shall prevail between the state’s interest and religious liberty, reasonableness shall be the guide. The "compelling
state interest" serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved. 137 (citations omitted)

At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing the applicability of the
benevolent neutrality framework and compelling state interest test, states that "[i]t is true that a test needs to be
applied by the Court in determining the validity of a free exercise claim of exemption as made here by Escritor."
This assertion is inconsistent with the position negating the benevolent neutrality or accommodation approach. If it
were true, indeed, that the religion clauses do not require accommodations based on the free exercise of religion,
then there would be no need for a test to determine the validity of a free exercise claim, as any and all claims for
religious exemptions from a law of general application would fail.

Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and mandatory
accommodation is more critically important in analyzing free exercise exemption claims because it forces the Court
to confront how far it can validly set the limits of religious liberty under the Free Exercise Clause, rather than
presenting the separation theory and accommodation theory as opposite concepts, and then rejecting relevant and
instructive American jurisprudence (such as the Smith case) just because it does not espouse the theory selected." He
then asserts that the Smith doctrine cannot be dismissed because it does not really espouse the strict neutrality
approach, but more of permissive accommodation.

Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith is that only legislative
accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a claim of religion
exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine actually
espouses the theory of accommodation or benevolent neutrality, the accommodation is limited to the permissive, or
legislative exemptions. It, therefore, cannot be used as a test in determining the claims of religious exemptions
directly under the Free Exercise Clause because Smith does not recognize such exemption. Moreover, Mr. Justice
Carpio’s advocacy of the Smith doctrine would effectively render the Free Exercise protection—a fundamental right
under our Constitution—nugatory because he would deny its status as an independent source of right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a three-step process. We explained this process in
detail, by showing the questions which must be answered in each step, viz:

…First, "[H]as the statute or government action created a burden on the free exercise of religion?" The courts often
look into the sincerity of the religious belief, but without inquiring into the truth of the belief because the Free
Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimant’s
belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. xxx

xxx xxx xxx

Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of religious
liberty?" In this step, the government has to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if exemption is given; it must precisely
show how and to what extent those objectives will be undermined if exemptions are granted. xxx

xxx xxx xxx

Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means possible so
that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?" The
analysis requires the state to show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on
religious liberties xxx.138 [citations omitted]

Again, the application of the compelling state interest test could result to three situations of accommodation: First,
mandatory accommodation would result if the Court finds that accommodation is required by the Free Exercise
Clause. Second, if the Court finds that the State may, but is not required to, accommodate religious interests,
permissive accommodation results. Finally, if the Court finds that that establishment concerns prevail over potential
accommodation interests, then it must rule that the accommodation is prohibited.

One of the central arguments in Mr. Justice Carpio’s dissent is that only permissive accommodation can carve out an
exemption from a law of general application. He posits the view that the law should prevail in the absence of a
legislative exemption, and the Court cannot make the accommodation or exemption.

Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The cases of American Bible
Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent neutrality-
accommodation covers not only the grant of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is possible, even if anchored directly on an
invocation of the Free Exercise Clause alone, rather than a legislative exemption.

Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive accommodation
based on religious freedom has been granted with respect to one of the crimes penalized under the Revised Penal
Code, that of bigamy.

In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to Mormons an exemption from a
general federal law criminalizing polygamy, even if it was proven that the practice constituted a religious duty under
their faith.140 In contradistinction, Philippine law accommodates the same practice among Moslems, through a
legislative act. For while the act of marrying more than one still constitutes bigamy under the Revised Penal Code,
Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides
that the penal laws relative to the crime of bigamy "shall not apply to a person married…under Muslim law." Thus,
by legislative action, accommodation is granted of a Muslim practice which would otherwise violate a valid and
general criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our Decision dated
August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik, 141 he stated that a Muslim Judge
"is not criminally liable for bigamy because Shari’a law allows a Muslim to have more than one wife."

From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation only" advocacy in this
jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty of religious
liberty as embodied in the Free Exercise Clause does not require the grant of exemptions from generally applicable
laws to individuals whose religious practice conflict with those laws," his theory is infirmed by the showing that the
benevolent neutrality approach which allows for both mandatory and permissive accommodations was
unequivocally adopted by our framers in the Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to the
notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred right and
an independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not applicable when
the law in question is a generally applicable criminal law. Stated differently, even if Mr. Justice Carpio conceded
that there is no question that in the Philippine context, accommodations are made, the question remains as to how far
the exemptions will be made and who would make these exemptions.

On this point, two things must be clarified: first, in relation to criminal statutes, only the question of mandatory
accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed legislative accommodation.
Second, the power of the Courts to grant exemptions in general (i.e., finding that the Free Exercise Clause required
the accommodation, or mandatory accommodations) has already been decided, not just once, but twice by the Court.
Thus, the crux of the matter is whether this Court can make exemptions as in Ebralinag and the American Bible
Society, in cases involving criminal laws of general application.

We hold that the Constitution itself mandates the Court to do so for the following reasons.

First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion clauses,
the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced and given leeway
than in the U.S.

Second, the whole purpose of the accommodation theory, including the notion of mandatory accommodations, was
to address the "inadvertent burdensome effect" that an otherwise facially neutral law would have on religious
exercise. Just because the law is criminal in nature, therefore, should not bring it out of the ambit of the Free
Exercise Clause. As stated by Justice O’Connor in her concurring opinion in Smith, "[t]here is nothing talismanic
about neutral laws of general applicability or general criminal prohibitions, for laws neutral towards religion can
coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws
aimed at religion."142

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions who are
likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary to protect
adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and
indifference and overt hostility to the minority. As stated in our Decision, dated August 4, 2003:

....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently,
they come into conflict with the religious scruples of those holding different world views, even in the absence of a
deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because
some laws are so necessary to the common good that exceptions are intolerable. But in other instances, the injury to
religious conscience is so great and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and
executive officials are frequently willing to make such exemptions when the need is brought to their attention, but
this may not always be the case when the religious practice is either unknown at the time of enactment or is for some
reason unpopular. In these cases, a constitutional interpretation that allows accommodations prevents needless injury
to the religious consciences of those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to religious faiths that are less able to protect
themselves in the political arena.

Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be applied for
the first time, as an exemption of such nature, albeit by legislative act, has already been granted to Moslem
polygamy and the criminal law of bigamy.

Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the Bill of
Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property, the Religion
Clauses are stated in absolute terms, unqualified by the requirement of "due process," "unreasonableness," or
"lawful order." Only the right to free speech is comparable in its absolute grant. Given the unequivocal and
unqualified grant couched in the language, the Court cannot simply dismiss a claim of exemption based on the Free
Exercise Clause, solely on the premise that the law in question is a general criminal law. 143 If the burden is great
and the sincerity of the religious belief is not in question, adherence to the benevolent neutrality-accommodation
approach require that the Court make an individual determination and not dismiss the claim outright.

At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach does not
mean that the Court ought to grant exemptions every time a free exercise claim comes before it. This is an erroneous
reading of the framework which the dissent of Mr. Justice Carpio seems to entertain. Although benevolent neutrality
is the lens with which the Court ought to view religion clause cases, the interest of the state should also be afforded
utmost protection. This is precisely the purpose of the test—to draw the line between mandatory, permissible and
forbidden religious exercise. Thus, under the framework, the Court cannot simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the orthodox view, as proposed by Mr. Justice
Carpio, for this precisely is the protection afforded by the religion clauses of the Constitution.144 As stated in the
Decision:

xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in
determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the
means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious
clause jurisprudence should be directed. We here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which
the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is
the protection of religious liberty "not only for a minority, however small- not only for a majority, however large but
for each of us" to the greatest extent possible within flexible constitutional limits. 145

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be
resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the careful
application of the compelling state interest test, i.e., determining whether respondent is entitled to exemption, an
issue which is essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officer’s
report,146along with the evidence submitted by the OSG, this case is once again with us, to resolve the penultimate
question of whether respondent should be found guilty of the administrative charge of "disgraceful and immoral
conduct." It is at this point then that we examine the report and documents submitted by the hearing officer of this
case, and apply the three-step process of the compelling state interest test based on the evidence presented by the
parties, especially the government.

On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and centrality of
respondent’s claimed religious belief and practice are beyond serious doubt.147 Thus, having previously established
the preliminary conditions required by the compelling state interest test, i.e., that a law or government practice
inhibits the free exercise of respondent’s religious beliefs, and there being no doubt as to the sincerity and centrality
of her faith to claim the exemption based on the free exercise clause, the burden shifted to the government to
demonstrate that the law or practice justifies a compelling secular objective and that it is the least restrictive means
of achieving that objective.

A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override respondent’s fundamental right to religious freedom. Neither did the
government exert any effort to show that the means it seeks to achieve its legitimate state objective is the least
intrusive means.
The OSG merely offered the following as exhibits and their purposes:

1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of Bro. Raymond B. Leach,
Legal Representative of the Watch Tower Bible and Tract Society of the Philippines, Inc.

Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondent’s claimed
religious belief and practice.

2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003 issued and
signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief and practice;
and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal arrangement within the
congregation of the Jehovah’s Witnesses, cannot be a source of any legal protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
respondent’s claimed religious belief and practice, in order to protect marriage and the family as basic social
institutions. The Solicitor General, quoting the Constitution148 and the Family Code,149 argues that marriage and the
family are so crucial to the stability and peace of the nation that the conjugal arrangement embraced in the
Declaration of Pledging Faithfulness should not be recognized or given effect, as "it is utterly destructive of the
avowed institutions of marriage and the family for it reduces to a mockery these legally exalted and socially
significant institutions which in their purity demand respect and dignity."150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he asserts that
the State has a compelling interest in the preservation of marriage and the family as basic social institutions, which
is ultimately the public policy underlying the criminal sanctions against concubinage and bigamy. He also argues
that in dismissing the administrative complaint against respondent, "the majority opinion effectively condones and
accords a semblance of legitimacy to her patently unlawful cohabitation..." and "facilitates the circumvention of the
Revised Penal Code." According to Mr. Justice Carpio, by choosing to turn a blind eye to respondent’s criminal
conduct, the majority is in fact recognizing a practice, custom or agreement that subverts marriage. He argues in a
similar fashion as regards the state’s interest in the sound administration of justice.

There has never been any question that the state has an interest in protecting the institutions of marriage and the
family, or even in the sound administration of justice. Indeed, the provisions by which respondent’s relationship is
said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles
334 and 349 of the Revised Penal Code, and even the provisions on marriage and family in the Civil Code and
Family Code, all clearly demonstrate the State’s need to protect these secular interests.

Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in our
Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights — "the most
inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend that the state’s
interest is important, because our Constitution itself holds the right to religious freedom sacred. The State must
articulate in specific terms the state interest involved in preventing the exemption, which must be compelling, for
only the gravest abuses, endangering paramount interests can limit the fundamental right to religious freedom. To
rule otherwise would be to emasculate the Free Exercise Clause as a source of right by itself.

Thus, it is not the State’s broad interest in "protecting the institutions of marriage and the family," or even "in the
sound administration of justice" that must be weighed against respondent’s claim, but the State’s narrow interest in
refusing to make an exception for the cohabitation which respondent’s faith finds moral. In other words, the
government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are granted. 151 This, the Solicitor General failed to
do.
To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s interest in enforcing its
prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill
any compelling interest, if it does not, in fact, attempt to enforce that prohibition. In the case at bar, the State has not
evinced any concrete interest in enforcing the concubinage or bigamy charges against respondent or her partner. The
State has never sought to prosecute respondent nor her partner. The State’s asserted interest thus amounts only to the
symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and
Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to deny the exemption would effectively
break up "an otherwise ideal union of two individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very substance of marriage and the family.

The Solicitor General also argued against respondent’s religious freedom on the basis of morality, i.e., that "the
conjugal arrangement of respondent and her live-in partner should not be condoned because adulterous relationships
are constantly frowned upon by society";152 and "that State laws on marriage, which are moral in nature, take clear
precedence over the religious beliefs and practices of any church, religious sect or denomination on marriage.
Verily, religious beliefs and practices should not be permitted to override laws relating to public policy such as those
of marriage."153

The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in her
dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments have
already been addressed in our decision dated August 4, 2003. 154 In said Decision, we noted that Mme. Justice
Ynares-Santiago’s dissenting opinion dwelt more on the standards of morality, without categorically holding that
religious freedom is not in issue.155 We, therefore, went into a discussion on morality, in order to show that:

(a) The public morality expressed in the law is necessarily secular for in our constitutional order, the
religion clauses prohibit the state from establishing a religion, including the morality it sanctions. 156 Thus,
when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,157 or "public morals" in the Revised Penal Code,158 or "morals" in the New Civil
Code,159 or "moral character" in the Constitution,160 the distinction between public and secular morality on
the one hand, and religious morality, on the other, should be kept in mind; 161

(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests;162

(c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the
Court makes in the case at bar should be understood only in this realm where it has authority. 163

(d) Having distinguished between public and secular morality and religious morality, the more difficult task
is determining which immoral acts under this public and secular morality fall under the phrase "disgraceful
and immoral conduct" for which a government employee may be held administratively liable. 164 Only one
conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose
partner is legally married to another which Philippine law and jurisprudence consider both immoral and
illegal.165

(e) While there is no dispute that under settled jurisprudence, respondent’s conduct constitutes "disgraceful
and immoral conduct," the case at bar involves the defense of religious freedom, therefore none of the cases
cited by Mme. Justice Ynares-Santiago apply.166 There is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the Jehovah’s Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We
cannot summarily conclude therefore

that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law. 167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with conduct
prejudicial to the best interest of the service, and we reiterate that the dissent offends due process as respondent was
not given an opportunity to defend herself against the charge of "conduct prejudicial to the best interest of the
service." Indeed, there is no evidence of the alleged prejudice to the best interest of the service. 168

Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondent
exemption from the laws which respondent Escritor has been charged to have violated, the exemption would not
apply to Catholics who have secured church annulment of their marriage even without a final annulment from a civil
court. First, unlike Jehovah’s Witnesses, the Catholic faith considers cohabitation without marriage as immoral.
Second, but more important, the Jehovah’s Witnesses have standards and procedures which must be followed before
cohabitation without marriage is given the blessing of the congregation. This includes an investigative process
whereby the elders of the congregation verify the circumstances of the declarants. Also, the Declaration is not a
blanket authority to cohabit without marriage because once all legal impediments for the couple are lifted, the
validity of the Declaration ceases, and the congregation requires that the couple legalize their union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises the
issue of equality among religions, we look to the words of the Religion Clauses, which clearly single out religion for
both a benefit and a burden: "No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof…" On its face, the language grants a unique advantage to religious conduct, protecting it from
governmental imposition; and imposes a unique disadvantage, preventing the government from supporting it. To
understand this as a provision which puts religion on an equal footing with other bases for action seems to be a
curious reading. There are no "free exercise" of "establishment" provisions for science, sports, philosophy, or family
relations. The language itself thus seems to answer whether we have a paradigm of equality or liberty; the language
of the Clause is clearly in the form of a grant of liberty. 169

In this case, the government’s conduct may appear innocent and nondiscriminatory but in effect, it is oppressive to
the minority. In the interpretation of a document, such as the Bill of Rights, designed to protect the minority from
the majority, the question of which perspective is appropriate would seem easy to answer. Moreover, the text,
history, structure and values implicated in the interpretation of the clauses, all point toward this perspective. Thus,
substantive equality—a reading of the religion clauses which leaves both politically dominant and the politically
weak religious groups equal in their inability to use the government (law) to assist their own religion or burden
others—makes the most sense in the interpretation of the Bill of Rights, a document designed to protect minorities
and individuals from mobocracy in a democracy (the majority or a coalition of minorities). 170

As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause. 171 Thus, in arguing that respondent
should be held administratively liable as the arrangement she had was "illegal per se because, by universally
recognized standards, it is inherently or by its very nature bad, improper, immoral and contrary to good
conscience,"172 the Solicitor General failed to appreciate that benevolent neutrality could allow for accommodation
of morality based on religion, provided it does not offend compelling state interests. 173

Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate that the
state has used the least intrusive means possible so that the free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes as
little as possible on religious liberties.174 Again, the Solicitor General utterly failed to prove this element of the test.
Other than the two documents offered as cited above which established the sincerity of respondent’s religious belief
and the fact that the agreement was an internal arrangement within respondent’s congregation, no iota of evidence
was offered. In fact, the records are bereft of even a feeble attempt to procure any such evidence to show that the
means the state adopted in pursuing this compelling interest is the least restrictive to respondent’s religious freedom.

Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s conjugal
arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental
right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms -
including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man
stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so
compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence
of a showing that such state interest exists, man must be allowed to subscribe to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint is dismissed.

SO ORDERED.
 EN BANC
[G.R. No. 117472. February 7, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO, accused-appellant.

RESOLUTION
PER CURIAM:

On June 25, 1996, we rendered our decision in the instant case affirming the conviction of the accused-appellant
for the crime of raping his ten-year old daughter. The crime having been committed sometime in April, 1994, during
which time Republic Act (R.A.) No. 7659, commonly known as the Death Penalty Law, was already in effect, accused-
appellant was inevitably meted out the supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for Reconsideration which focused on the sinister
motive of the victim's grandmother that precipitated the filing of the alleged false accusation of rape against the
accused. We find no substantial arguments on the said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense counsel, Atty. Julian R. Vitug, and retained the
services of the Anti-Death Penalty Task Force of the Free Legal Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for Reconsideration prepared by the FLAG on behalf
of accused-appellant. The motion raises the following grounds for the reversal of the death sentence:
"[1] Accused-appellant should not have been prosecuted since the pardon by the offended party and her
mother before the filing of the complaint acted as a bar to his criminal prosecution.
[2] The lack of a definite allegation of the date of the commission of the offense in the Complaint and
throughout trial prevented the accused-appellant from preparing an adequate defense.
[3] The guilt of the accused was not proved beyond a reasonable doubt.
[4] The Honorable Court erred in finding that the accused-appellant was the father or stepfather of the
complainant and in affirming the sentence of death against him on this basis.
[5] The trial court denied the accused-appellant of due process and manifested bias in the conduct of the
trial.
[6] The accused-appellant was denied his constitutional right to effective assistance of counsel and to
due process, due to the incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is unconstitutional per se:
a. For crimes where no death results from the offense, the death penalty is a severe and
excessive penalty in violation of Article III, Sec. 19 ( I ) of the 1987 Constitution.
b. The death penalty is cruel and unusual punishment in violation of Article III, Sec. 11
of the 1987 Constitution."
In sum, the Supplemental Motion for Reconsideration raises three (3) main issues: (1) mixed factual and legal matters
relating to the trial proceedings and findings; (2) alleged incompetence of accused-appellant's former counsel; and (3)
purely legal question of the constitutionality of R.A. No. 7659.
I.
It is a rudimentary principle of law that matters neither alleged in the pleadings nor raised during the proceedings
below cannot be ventilated for the first time on appeal before the Supreme Court. Moreover, as we have stated in our
Resolution in Manila Bay Club Corporation v. Court of Appeals:[1]
 "If well-recognized jurisprudence precludes raising an issue only for the first time on appeal proper, with
more reason should such issue be disallowed or disregarded when initially raised only in a motion for
reconsideration of the decision of the appellate court."
It is to be remembered that during the proceedings of the rape case against the accused-appellant before the sala
of then presiding Judge xxx, the defense attempted to prove that:
a) the rape case was motivated by greed, hence, a mere concoction of the alleged victim's maternal
grandmother;
b) the accused is not the real father of the complainant;
c) the size of the penis of the accused cannot have possibly penetrated the alleged victim's private part;
and
d) the accused was in xxx during the time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic review, the accused-appellant reiterated as
grounds for exculpation:

a) the ill-motive of the victim's maternal grandmother in prompting her grandchild to file the rape case;
b) the defense of denial relative to the size of his penis which could not have caused the healed
hymenal lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel of the accused-appellant reveals that in their
messianic appeal for a reversal of our judgment of conviction, we are asked to consider for the first time, by way of a
Supplemental Motion for Reconsideration, the following matters:
a) the affidavit of desistance written by the victim which acted as a bar to the criminal prosecution for
rape against the accused-appellant;
b) the vagueness attributed to the date of the commission of the offense in the Complaint which
deprived the accused-appellant from adequately defending himself;
c) the failure of this Court to clearly establish the qualifying circumstance that placed the accused-
appellant within the coverage of the Death Penalty Law;
d) the denial of due process and the manifest bias exhibited by the trial court during the trial of the rape
case.
Apparently, after a careful scrutiny of the foregoing points for reconsideration, the only legitimate issue that We
can tackle relates to the Affidavit of Desistance which touches on the lack of jurisdiction of the trial court to have
proceeded with the prosecution of the accused-appellant considering that the issue of jurisdiction over the subject
matter may be raised at any time, even during appeal.[2]
It must be stressed that during the trial proceedings of the rape case against the accused-appellant, it appeared
that despite the admission made by the victim herself in open court that she had signed an Affidavit of Desistance,
she, nevertheless, "strongly pointed out that she is not withdrawing the charge against the accused because the latter
might do the same sexual assaults to other women."[3] Thus, this is one occasion where an affidavit of desistance must
be regarded with disfavor inasmuch as the victim, in her tender age, manifested in court that she was pursuing the rape
charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare,[4] that:
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also cited by the accused-appellant,
an affidavit of desistance is merely an additional ground to buttress the accused's defenses, not the sole
consideration that can result in acquittal. There must be other circumstances which, when coupled with
the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial
and accepted by the judge."[5]
 In the case at bar, all that the accused-appellant offered as defenses mainly consisted of denial and alibi which
cannot outweigh the positive identification and convincing testimonies given by the prosecution. Hence, the affidavit
of desistance, which the victim herself intended to disregard as earlier discussed, must have no bearing on the criminal
prosecution against the accused-appellant, particularly on the trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or mistakes of his counsel. [6] One of the recognized
exceptions to this rule is gross incompetency in a way that the defendant is highly prejudiced and prevented, in effect,
from having his day in court to defend himself.[7]
In the instant case, we believe that the former counsel of the accused-appellant to whom the FLAG lawyers now
impute incompetency had amply exercised the required ordinary diligence or that reasonable decree of care and skill
expected of him relative to his client's defense. As the rape case was being tried on the merits, Atty. Vitug, from the
time he was assigned to handle the case, dutifully attended the hearings thereof. Moreover, he had seasonably
submitted the Accused-Appellant's Brief and the Motion for Reconsideration of our June 25, 1996 Decision with
extensive discussion in support of his line of defense. There is no indication of gross incompetency that could have
resulted from a failure to present any argument or any witness to defend his client. Neither has he acted haphazardly
in the preparation of his case against the prosecution evidence. The main reason for his failure to exculpate his client,
the accused-appellant, is the overwhelming evidence of the prosecution. The alleged errors committed by the previous
counsel as enumerated by the new counsel could not have overturned the judgment of conviction against the accused-
appellant.
III
Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or custom,
religious or secular, is an ancient practice. We do know that our forefathers killed to avenge themselves and their kin
and that initially, the criminal law was used to compensate for a wrong done to a private party or his family, not to
punish in the name of the state.
The dawning of civilization brought with it both the increasing sensitization throughout the later generations
against past barbarity and the institutionalization of state power under the rule of law. Today every man or woman is
both an individual person with inherent human rights recognized and protected by the state and a citizen with the duty
to serve the common weal and defend and preserve society.
One of the indispensable powers of the state is the power to secure society against threatened and actual
evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and punish illegal acts that
may be committed by its own subjects, the executive agencies enforce these laws, and the judiciary tries and sentences
the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating on the causes of criminal behavior and the
purposes of criminal punishment, our criminal laws have been perceived as relatively stable and functional since the
enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding occasional opposition to the death
penalty provisions therein. The Revised Penal Code, as it was originally promulgated, provided for the death penalty
in specified crimes under specific circumstances. As early as 1886, though, capital punishment had entered our legal
system through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a constitutional question of whether or not the
death penalty is a cruel, unjust, excessive or unusual punishment in violation of the constitutional proscription against
cruel and unusual punishments. We unchangingly answered this question in the negative in the cases of Harden v.
Director of Prison,[8] People v. Limaco,[9] People v. Camano,[10] People v. Puda[11] and People v.
Marcos,[12] In Harden, we ruled:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436, the United
States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death, but the
punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there
something inhuman and barbarous, something more than the mere extinguishment of life.'" [13]
Consequently, we have time and again emphasized that our courts are not the fora for a protracted debate on the
morality or propriety of the death sentence where the law itself provides therefor in specific and well-defined criminal
acts. Thus we had ruled in the 1951 case of Limacothat:
"x x x there are quite a number of people who honestly believe that the supreme penalty is either morally
wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long
as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect
and apply the law regardless of their private opinions," [14]
and this we have reiterated in the 1995 case of People v. Veneracion.[15]
Under the Revised Penal Code, death is the penalty for the crimes of treason, correspondence with the enemy during
times of war, qualified piracy, parricide, murder, infanticide, kidnapping, rape with homicide or with the use of
deadly weapon or by two or more persons resulting in insanity, robbery with homicide, and arson resulting in
death. The list of capital offenses lengthened as the legislature responded to the emergencies of the times. In 1941,
Commonwealth Act (C.A.) No. 616 added espionage to the list. In the 1950s, at the height of the Huk rebellion, the
government enacted Republic Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law, which carried the
death penalty for leaders of the rebellion. From 1971 to 1972, more capital offenses were created by more laws,
among them, the Anti-Hijacking Law, the Dangerous Drugs Act, and the Anti-Carnapping Law. During martial law,
Presidential Decree (P.D.) No. 1866 was enacted penalizing with death, among others, crimes involving homicide
committed with an unlicensed firearm.

In the aftermath of the 1986 revolution that dismantled the Marcos regime and led to the nullification of the 1973
Constitution, a Constitutional Commission was convened following appointments thereto by Corazon Aquino who
was catapulted to power by the people.

Tasked with formulating a charter that echoes the new found freedom of a rejuvenated people, the Constitutional
Commissioners grouped themselves into working committees among which is the Bill of Rights Committee with
Jose B. Laurel, Jr. As Chairman and Father Joaquin G. Bernas, S.J., as Vice-Chairman.

On July 17, 1986, Father Bernas presented the committee draft of the proposed bill of rights to the rest of the
commission. What is now Article III, Section 19 (1) of the 1987 Constitution was first denominated as Section 22
and was originally worded as follows:

"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment, or the death penalty
inflicted. Death penalty already imposed shall be commuted to reclusion perpetua."

Father Bernas explained that the foregoing provision was the result of a consensus among the members of the Bill of
Rights Committee that the death penalty should be abolished. Having agreed to abolish the death penalty, they
proceeded to deliberate on how the abolition was to be done -- whether the abolition should be done by the Constitution
or by the legislature -- and the majority voted for a constitutional abolition of the death penalty. Father Bernas
explained:
"x x x [T]here was a division in the Committee not on whether the death penalty should be abolished or
not, but rather on whether the abolition should be done by the Constitution -- in which case it cannot be
restored by the legislature -- or left to the legislature. The majority voted for the constitutional abolition of
the death penalty. And the reason is that capital punishment is inhuman for the convict and his family
who are traumatized by the waiting, even if it is never carried out. There is no evidence that the death
penalty deterred deadly criminals, hence, life should not be destroyed just in the hope that other lives
might be saved. Assuming mastery over the life of another man is just too presumptuous for any
man. The fact that the death penalty as an institution has been there from time immemorial should not
deter us from reviewing it. Human life is more valuable than an institution intended precisely to serve
human life. So, basically, this is the summary of the reasons which were presented in support of the
constitutional abolition of the death penalty".[16]
The original wording of Article III, Section 19 (1), however, did not survive the debate that it
instigated. Commissioner Napoleon G. Rama first pointed out that "never in our history has there been a higher
incidence of crime" and that "criminality was at its zenith during the last decade". [17] Ultimately, the dissent defined
itself to an unwillingness to absolutely excise the death penalty from our legal system and leave society helpless in
the face of a future upsurge of crimes or other similar emergencies. As Commissioner Rustico F. de los Reyes, Jr.
suggested, "although we abolish the death penalty in the Constitution, we should afford some amount of flexibility to
future legislation,"[18] and his concern was amplified by the interpellatory remarks of Commissioner Lugum L.
Commissioner and now Associate Justice Florenz Regalado, Commissioner Crispino M. de Castro, Commissioner
Ambrosio B. Padilla, Commissioner Christian Monsod, Commissioner Francisco A. Rodrigo, and Commissioner
Ricardo Romulo. Commissioner Padillaput it succinctly in the following exchange with Commissioner Teodoro C.
Bacani:
"BISHOP BACANI. x x x At present, they explicitly make it clear that the church has never condemned
the right of the state to inflict capital punishment.
MR. PADILLA. x x x So it is granted that the state is not deprived of the right even from a moral
standpoint of imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point of view, that right of the state
is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has the delegated authority from the
Creator to impose the death penalty under certain circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what is needed for the sake of the
common good, but the issue at stake is whether or not under the present circumstances that will be for the
common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in history, but it is not
clear whether or not that delegation is forever under all circumstances
MR. PADILLA. So this matter should be left to the legislature to determine, under certain specified
conditions or circumstances, whether the retention of the death penalty or its abolition would be for the
common good. I do not believe this Commission can a priori, and as was remarked within a few days or
even a month, determine a positive provision in the Constitution that would prohibit even the legislature to
prescribe the death penalty for the most heinous crimes, the most grievous offenses attended by many
qualifying and aggravating circumstances." [19]
What followed, thus, were proposed amendments to the beleaguered provision. The move to add the phrase,
"unless for compelling reasons involving heinous crimes, the national assembly provides for the death penalty," came
from Commissioners Monsod, Jose E. Suarez and de los Reyes. Commissioner Rodrigo, however, expressed
reservations even as regards the proposed amendment. He said:
"x x x [T]he issue here is whether or not we should provide this matter in the Constitution or leave it to the
discretion of our legislature. Arguments pro and con have been given x x x. But my stand is, we should
leave this to the discretion of the legislature.
The proposed amendment is halfhearted. It is awkward because we will, in effect, repeal by our
Constitution a piece of legislation and after repealing this piece of legislation, tell the legislature that we
have repealed the law and that the legislature can go ahead and enact it again. I think this is not worthy of
a constitutional body like ours. If we will leave the matter of the death penalty to the legislature, let us
leave it completely to the discretion of the legislature, but let us not have this half-baked provision. We
have many provisions in the Revised Penal Code imposing the death penalty. We will now revoke or
repeal these pieces of legislation by means of the Constitution, but at the same time say that it is up to the
legislature to impose this again.
x x x The temper and condition of the times change x x x and so we, I think we should leave this matter to
the legislature to enact statutes depending on the changing needs of the times. Let us entrust this
completely to the legislature composed of representatives elected by the people.
 I do not say that we are not competent. But we have to admit the fact that we are not elected by the people
and if we are going to entrust this to the legislature, let us not be half-baked nor half-hearted about it. Let
us entrust it to the legislature 100 percent." [20]
Nonetheless, the proposed amendment was approved with twenty-three (23) commissioners voting in favor of the
amendment and twelve (12) voting against it, followed by more revisions, hence the present wording of Article III,
Section 19 (1) of the 1987 Constitution in the following tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua."
The implications of the foregoing provision on the effectivity of the death penalty provisions in the Revised
Penal Code and certain special criminal laws and the state of the scale of penalties thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for what used to be capital crimes. In People v.
Gavarra,[21] we stated 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"[22] thereby eliminating death as the original maximum period. The constitutional abolition of the death
penalty, it seemed, limited the penalty for murder to only the remaining periods, to wit, the minimum and the medium,
which we then, in People v. Masangkay,[23] People v. Atencio[24] and People v. Intino[25] divided into three new
periods, to wit, 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, in keeping with the three-grade scheme
under the Revised Penal Code. In People v. Munoz,[26] however, we reconsidered these aforecited cases and after
extended discussion, we concluded that the doctrine announced therein did not reflect the intention of the framers. The
crux of the issue was whether or not Article III, Section 19 (1) absolutely abolished the death penalty, for if it did,
then, the aforementioned new three-grade penalty should replace the old one where the death penalty constituted the
maximum period. But if no total abolition can be read from said constitutional provision and the death penalty is only
suspended, it cannot as yet be negated by the institution of a new three-grade penalty premised on the total inexistence
of the death penalty in our statute books. We thus ruled in Munoz:
"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 toreclusion 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 there 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".[27]
Nothing is more defining of the true content of Article III, Section 19 (1) of the 1987 Constitution than the form
in which the legislature took the initiative in re-imposing the death penalty.
The Senate never doubted its power as vested in it by the constitution, to enact legislation re-imposing the death
penalty for compelling reasons involving heinous crimes. Pursuant to this constitutional mandate, the Senate
proceeded to a two-step process consisting of: first, the decision, as a matter of policy, to re-impose the death penalty
or not; and second, the vote to pass on the third reading the bill re-imposing the death penalty for compelling reasons
involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments for and against capital punishment, the
Members of the Senate voted on the policy issue of death penalty. The vote was explained, thus:
"SUSPENSION OF THE RULES

Upon motion of Senator Romulo, there being no objection, the Body suspended the Rules of the Senate.
 Thereafter, upon motion of Senator Romulo, there being no objection, the Chair directed that a nominal
voting be conducted on the policy issue of death penalty.
INQUIRY OF SENATOR TOLENTINO

Asked by Senator Tolentino on how the Members of the Senate would vote on this policy question,
Senator Romulo stated that a vote of Yes would mean a vote in favor of death as a penalty to be
reincorporated in the scale of penalties as provided in the Revised Penal Code, and a vote of No would be
a vote against the reincorporation of death penalty in the scale of penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ

xxx
The Chair explained that it was agreed upon that the Body would first decide the question whether or not
death penalty should be reimposed, and thereafter, a seven-man committee would be formed to draft the
compromise bill in accordance with the result of the voting. If the Body decides in favor of the death
penalty, the Chair said that the committee would specify the crimes on which death penalty would be
imposed. It affirmed that a vote of Yes in the nominal voting would mean a vote in favor of death penalty
on at least one crime, and that certain refinements on how the penalty would be imposed would be left to
the discretion of the seven-man committee.
xxx
INQUIRY OF SENATOR TAADA

In reply to Senator Taada's query, the Chair affirmed that even if a senator would vote 'yes' on the basic
policy issue, he could still vote 'no' on the imposition of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO

Senator Tolentino observed that the Body would be voting on the basic policy issue of whether or not the
death penalty would be included in the scale of penalties found in Article 27 of the Revised Penal Code,
so that if it is voted down, the Body would discontinue discussing Senate Bill No. 891 pursuant to the
Rules, but if approved, a special committee, as agreed upon in the caucus, is going to be appointed and
whatever course it will take will depend upon the mandate given to it by the Body later on.
The Chair affirmed Senator Tolentino's observations.

REMARKS OF SENATOR ROCO

Senator Roco stated that the Body would vote whether or not death as a penalty will be reincorporated in the scale of
penalties provided by the Revised Penal Code. However, he pointed out that if the Body decides in favor of death
penalty, the Body would still have to address two issues: 1) Is the crime for which the death penalty is supposed to
be imposed heinous pursuant to the constitutional mandate? 2) And, if so, is there a compelling reason to impose the
death penalty for it? The death penalty, he stressed, cannot be imposed simply because the crime is heinous." [28]

With seventeen (17) affirmative votes and seven (7) negative votes and no abstention, the Chair declared that the
Senate has voted to re-incorporate death as a penalty in the scale of penalties as provided in the Revised Penal Code. A
nine-person committee was subsequently created to draft the compromise bill pursuant to said vote. The mandate of
the committee was to retain the death penalty, while the main debate in the committee would be the determination of
the crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special Committee on the Death Penalty,
delivered his Sponsorship Speech. He began with an explanation as to why the Senate Bill No. 891 re-imposes the
death penalty by amending the Revised Penal Code and other special penal laws and includes provisions that do not
define or punish crimes but serve purposes allied to the reimposition of the death penalty. Senator Tolentino stated:
x x x [W]hen the Senate approved the policy of reimposing the death penalty on heinous crimes and
delegated to the Special Committee the work of drafting a bill, a compromise bill that would be the subject
 for future deliberations of this Body, the Committee had to consider that the death penalty was imposed
originally in the Revised Penal Code.
So, when the Constitution was approved in order to do away with the death penalty, unless Congress
should, for compelling reasons reimpose that penalty on heinous crimes, it was obvious that it was the
Revised Penal Code that was affected by that provision of the Constitution. The death penalty, as
provided in the Revised Penal Code, would be considered as having been repealed -- all provisions on the
death penalty would be considered as having been repealed by the Constitution, until Congress should, for
compelling reasons, reimpose such penalty on heinous crimes. Therefore, it was not only one article but
many articles of the Revised Penal Code that were actually affected by the Constitution.
And it is in consideration of this consequence of the constitutional provision that our Special Committee
had to consider the Revised Penal Code itself in making this compromise bill or text of the bill. That is
why, in the proposed draft now under consideration which we are sponsoring, the specific provisions of
the Revised Penal Code are actually either reenacted or amended or both. Because by the effect of the
Constitution, some provisions were totally repealed, and they had to be reenacted so that the provisions
could be retained. And some of them had to be amended because the Committee thought that
amendments were proper."[29]
In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it would have been better if the
Senate were to enact a special law which merely defined and imposed the death penalty for heinous crimes, Senator
Tolentino explicated, thus:
"x x x [T]hat may be a way presenting the bill. But we must bear in mind that the death penalty is
imposed in the Revised Penal Code. Therefore, when the Constitution abolished the death penalty, it
actually was amending the Revised Penal Code to such an extent that the Constitution provides that where
the death penalty has already been imposed but not yet carried out, then the penalty shall be reclusion
perpetua, that is the penalty in the Revised Penal Code. So we thought that it would be best to just amend
the provisions of the Revised Penal Code, restoring the death penalty for some crimes that may be
considered as heinous. That is why the bill is in this form amending the provisions of the Revised Penal
Code.
Of course, if some people want to present a special bill . . . the whole trouble is, when a special bill is
presented and we want to punish in the special bill the case of murder, for instance, we will have to
reproduce the provisions of the Revised Penal Code on murder in order to define the crime for which the
death penalty shall be imposed. Or if we want to impose the death penalty in the case of kidnapping
which is punished in the Revised Penal Code, we will do the same -- merely reproduce. Why will we do
that? So we just followed the simpler method of keeping the definition of the crime as the same and
merely adding some aggravating circumstances and reimposing the death penalty in these offenses
originally punished in the Revised Penal Code." [30]
From March 17, 1993, when the death penalty bill was presented for discussion until August 16, 1993, the
Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept prodding the sponsors of the bill to state
the compelling reason for each and every crime for which the supreme penalty of death was sought. Zeroing in on
the statement in the preamble of the death penalty bill that the same is warranted in the face of "the alarming upsurge
of [heinous] crimes", Senator Lina demanded for solid statistics showing that in the case of each and every crime in
the death penalty bill, there was a significantly higher incidence of each crime after the suspension of the death penalty
on February 2, 1987 when the 1987 Constitution was ratified by the majority of the Filipino people, than before such
ratification.[31]Inasmuch as the re-impositionists could not satisfy the abolitionists with sufficient statistical data for
the latter to accept the alarming upsurge of heinous crimes as a compelling reason justifying the reimposition of the
death penalty, Senator Lina concluded that there were, in fact, no compelling reasons therefor. In the alternative,
Senator Lina argued that the compelling reason required by the constitution was that "the State has done everything
in its command so that it can be justified to use an inhuman punishment called death penalty". [32] The problem, Senator
Lina emphasized, was that even the re-impositionists admit that there were still numerous reforms in the criminal
justice system that may and must be put in place, and so clearly, the recourse to the enactment of a death penalty bill
was not in the nature of a last resort, hence, unconstitutional in the absence of compelling reasons. As an initial
reaction to Senator Lina's contentions, Senator Tolentino explained that the statement in the preamble is a general one
and refers to all the crimes covered by the bill and not to specific crimes. He added that one crime may not have the
same degree of increase in incidence as the other crimes and that the public demand to impose the death penalty is
enough compelling reason.[33]
Equally fit to the task was Senator Wigberto Taada to whom the battle lines were clearly drawn. He put to issue
two things: first, the definition of "heinous crimes" as provided for in the death penalty bill; and second, the statement
of compelling reasons for each and every capital crime. His interpellation of Senator Tolentino clearly showed his
objections to the bill:
"Senator Taada. x x x But what would make crimes heinous, Mr. President? Are crimes heinous by their nature or
elements as they are described in the bill or are crimes heinous because they are punished by death, as bribery and
malversation are proposed to be punished in the bill?

Senator Tolentino. They are heinous by their nature, Mr. President, but that is not supposed to be the exclusive
criterion. The nature of the offense is the most important element in considering it heinous but, at the same time, we
should consider the relation of the offense to society in order to have a complete idea of the heinous nature of these
offenses.

In the case of malversation or bribery, for instance, these offenses by themselves connected with the effect upon
society and the government have made them fall under the classification of heinous crimes. The compelling reason
for imposing the death penalty is when the offenses of malversation and bribery becomes so grave and so serious as
indicated in the substitute bill itself, then there is a compelling reason for the death penalty.

Senator Taada. With respect to the compelling reasons, Mr. President, does the Gentleman believe that these
compelling reasons, which would call for the reimposition of the death penalty, should be separately, distinctly and
clearly stated for each crime so that it will be very clear to one and all that not only are these crimes heinous but also
one can see the compelling reasons for the reimposition of the death penalty therefor?

Senator Tolentino. Mr. President, that matter was actually considered by the Committee. But the decision of the
Committee was to avoid stating the compelling reason for each and every offense that is included in the substitute
measure. That is why in the preamble, general statements were made to show these compelling reasons. And that,
we believe, included in the bill, when converted into law, would be sufficient notice as to what were considered
compelling reasons by the Congress, in providing the death penalty for these different offenses.

If a matter like this is questioned before the Supreme Court, I would suppose that with the preamble already in
general terms, the Supreme Court would feel that it was the sense of Congress that this preamble would be
applicable to each and every offense described or punishable in the measure.

So we felt that it was not necessary to repeat these compelling reasons for each and every offense.

Senator Taada. Mr. President, I am thinking about the constitutional limitations upon the power of Congress to
enact criminal legislation, especially the provisions on the Bill of Rights, particularly the one which says that no
person shall be held to answer for a criminal offense without due process of law.

Can we not say that under this provision, it is required that the compelling reasons be so stated in the bill so that the
bill, when it becomes a law, will clearly define the acts and the omissions punished as crimes?

Senator Tolentino. Mr. President, I believe that in itself, as substantive law, this is sufficient. The question of
whether there is due process will more or less be a matter of procedure in the compliance with the requirements of
the Constitution with respect to due process itself which is a separate matter from the substantive law as to the
definition and penalty for crimes.

Senator Taada. Under the Constitution, Mr. President, it appears that the reimposition of the death penalty is
subject to three conditions and these are:

1. Congress should so provide such reimposition of the death penalty;

2. There are compelling reasons; and

3. These involve heinous crimes.

Under these provision of the Constitution, paragraph 1, Section 13, does the distinguished Gentleman not
feel that Congress is bound to state clearly the compelling reasons for the reimposition of the death
penalty for each crime, as well as the elements that make each of the crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter of opinion already. I believe that whether we state the
compelling reasons or not, whether we state why a certain offense is heinous, is not very important. If the
question is raised in the Supreme Court, it is not what we say in the bill that will be controlling but what
the Supreme Court will fell as a sufficient compelling reason or as to the heinous nature whether the
crime is heinous or not. The accused can certainly raise the matter of constitutionality but it will not go
into the matter of due process. It will go into the very power of Congress to enact a bill imposing the
death penalty. So that would be entirely separate from the matter of due process." [34]
Senator Francisco Tatad, on his part, pointed out that the death penalty bill violated our international commitment
in support of the worldwide abolition of capital punishment, the Philippines being a signatory to the International
Covenant on Civil and Political Rights and its Second Optional Protocol. Senator Ernesto Herrera clarified, however,
that in the United Nations, subject matters are submitted to the different committees which vote on them for
consideration in the plenary session. He stressed that unless approved in the plenary session, a declaration would have
no binding effect on signatory countries. In this respect, the Philippines cannot be deemed irrevocably bound by said
covenant and protocol considering that these agreements have reached only the committee level.[35]
After the protracted debate, the Members of the Senate voted on Senate Bill No. 891 on third reading. With
seventeen (17) affirmative votes, four (4) negative votes, and one abstention, the death penalty bill was approved on
third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on August 16, 1993 was a vindication of, the
House of Representatives. The House had, in the Eight Congress, earlier approved on third reading House Bill No.
295 on the restoration of the death penalty for certain heinous crimes. The House was in effect rebuffed by the Senate
when the Senate killed House Bill No. 295 along with other bills coming from the House. House Bill No. 295 was
resurrected during the Ninth Congress in the form of House Bill No. 62 which was introduced by twenty one (21)
Members of the House of Representatives on October 27, 1992. House Bill No. 62 was a merger of House Bill Nos.
125, 187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632 authored by various Members of the Lower
House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably essayed the constitutional vesting
in Congress of the power to re-impose the death penalty for compelling reasons invoking heinous crimes as well as
the nature of this constitutional pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:

'Neither shall death penalty be imposed, unless, for compelling reasons involving heinous
crimes, the Congress shall thereafter provide for it . . .'
The phrase 'unless, for compelling reasons involving heinous crimes, the Congress shall thereafter provide for it
was introduced as an amendment by then Comm. Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the death penalty was not completely
abolished by the 1987 Constitution. Rather, it merely suspended the death penalty and gave Congress the discretion
to review it at the propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm. Ricardo Romulo said, and I quote:
"'The people should have the final say on the subject, because, at some future time, the people might want
to restore death penalty through initiative and referendum.
Commissioner Monsod further argued, and I quote:
 We cannot presume to have the wisdom of the ages. Therefore, it is entirely possible in the future that
circumstances may arise which we should not preclude today.
xxx xxx xxx
I believe that [there] are enough compelling reasons that merit the reimposition of the capital punishment. The
violent manner and the viciousness in which crimes are now committed with alarming regularity, show very clearly a
patent disregard of the law and a mockery of public peace and order.
In the public gallery section today are the relatives of the victims of heinous crimes the Hultmans, the Maguans,
the Vizcondes, the Castanoses, and many more, and they are all crying for justice. We ought to listen to them because
their lives, their hopes, their dreams, their future have fallen asunder by the cruel and vicious criminality of a few who
put their selfish interest above that of society.
Heinous crime is an act or series of acts which, by the flagrantly violent manner in which the same was committed
or by the reason of its inherent viciousness, shows a patent disregard and mockery of the law, public peace and order,
or public morals. It is an offense whose essential and inherent viciousness and atrocity are repugnant and outrageous
to a civilized society and hence, shock the moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two lovely daughters, will stand in the people's
memory for many long years as the epitome of viciousness and atrocity that are repugnant to civilized society.
The senseless murder of Eldon Maguan, and up-and-coming young business executive, was and still is an outrage
that shocks the moral self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old high school student who dreamt of
becoming a commercial model someday, at the hands of a crazed man was so repulsive, so brutal that it offends the
sensibilities of Christians and non-Christians alike
The cold-blooded double murder of Cochise Bernabe and Beebom Castanos, the lovely and promising couple
from the University of the Philippines, is eternally lodged in the recesses of our minds and still makes our stomach
turn in utter disgust.
xxx xxx xxx
The seriousness of the situation is such that if no radical action is taken by this body in restoring death penalty
as a positive response to the overwhelming clamor of the people, then, as Professor Esteban Bautista of the Philippine
Law Center said, and I quote:
'When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the
punishment they deserve, there are sown the seeds of anarchy of self-help, of vigilante justice and lynch law. The
people will take the law upon their hands and exact vengeance in the nature of personal vendetta.'

It is for this reason, Mr. Speaker, that I stand here and support House Bill No. 62.
As duly elected Representatives of our people, collectively, we ought to listen to our constituents and heed their
plea a plea for life, liberty and pursuit of their happiness under a regime of justice and democracy, and without threat
that their loves ones will be kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law they could rely on for justice. A law that will exact
retribution for the victims. A law that will deter future animalistic behavior of the criminal who take their selfish
interest over and above that of society. A law that will deal a deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that we hold dear and sacred, let us
restore the death penalty."[36]

A studious comparison of the legislative proceedings in the Senate and in the House of Representatives reveals
that, while both Chambers were not wanting of oppositors to the death penalty, the Lower House seemed less
quarrelsome about the form of the death penalty bill as a special law specifying certain heinous crimes without regard
to the provisions of the Revised Penal Code and more unified in the perception of what crimes are heinous and that
the fact of their very heinousness involves the compulsion and the imperative to suppress, if not completely eradicate,
their occurrence. Be it the foregoing general statement of Representative Sanchez or the following details of the nature
of the heinous crimes enumerated in House Bill No. 62 by Representative Miguel L. Romero of Negros Oriental, there
was clearly, among the hundred or so re-impositionists in the Lower House, no doubt as to their cause:
"My friends, this bill provides for the imposition of the death penalty not only for the importation, manufacture and
sale of dangerous drugs, but also for other heinous crimes such as reason; parricide; murder; kidnapping; robbery;
rape as defined by the Revised Penal Code with or without additionally defined circumstances; plunder, as defined
in R.A. 7080; piracy, as defined under Section 2 of PD 532; carnapping, as defined in Section 2 of RA 6539, when
the owner, driver or occupant is killed; hijacking, as defined in xxx RA 6235; and arson resulting in the death of any
occupants.

All these crimes have a common denominator which qualifies them to the level of heinous crimes. A heinous crime
is one which, by reason of its inherent or manifest wickedness, viciousness, atrocity or perversity, is repugnant and
outrageous to the common standards of decency and morality in a just and civilized society.

For instance, the crime of treason is defined as a breach of allegiance to a government, committed by a person who
owes allegiance to it (U.S. v. Abad 1 Phil. 437). By the 'allegiance' is meant the obligation of fidelity and obedience
which individuals owe to the government under which they live or to their sovereign in return for the protection
which they receive (52 Am Jur 797).

In kidnapping, the though alone of one's loved one being held against his or her own will in some unidentified xxx
house by a group of scoundrels who are strangers is enough terrify and send shivers of fear through the spine of any
person, even scoundrels themselves.

In robbery accompanied by rape, intentional mutilation or arson, what is being punished by death is the fact that the
perpetrator, at the time of the commission of the crime, thinks nothing of the other crime he commits and sees it
merely as a form of self-amusement. When a homicide is committed by reason of the robbery, the culprits are
perceived as willing to take human life in exchange for money or other personal property.

In the crime of rape, not only do we speak of the pain and agony of the parents over the personal shock and suffering
of their child but the stigma of the traumatic and degrading incident which has shattered the victim's life and
permanently destroyed her reputation, not to mention the ordeal of having to undergo the shameful experience of
police interrogation and court hearings.

Piracy, which is merely a higher form of robbery, is punished for the universal hostility of the perpetrators against
their victims who are passengers and complement of the vessel, and because of the fact that, in the high seas, no one
may be expected to be able to come to the rescue of the helpless victims. For the same reason, Mr. Speaker, the
crime of air piracy is punished due to the evil motive of the hijackers in making unreasonable demands upon the
sovereignty of an entire nation or nations, coupled with the attendant circumstance of subjecting the passengers to
terrorism." [37]

The debate on House Bill No. 62 lasted from October 27, 1992 to February 11, 1993. On February 11, 1993, the
Members of the House of Representatives overwhelmingly approved the death penalty bill on second reading.
On February 23, 1993, after explaining their votes, the Members of the House of Representatives cast their vote
on House Bill No. 62 when it was up for consideration on third reading. [38] The results were 123 votes in favor, 26
votes against, and 2 abstentions
After the approval on third reading of House Bill No. 62 on February 23, 1993 and of Senate Bill No. 891 on
August 16, 1993, the Bicameral Conference Committee convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to Impose the Death Penalty on Certain
Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, Other Special Penal Laws, and
for Other Purposes," took effect.[39]
Between December 31, 1993, when R.A. No. 7659 took effect, and the present time, criminal offenders have
been prosecuted under said law, and one of them, herein accused-appellant, has been, pursuant to said law, meted out
the supreme penalty of death for raping his ten-year old daughter. Upon his conviction, his case was elevated to us
on automatic review. On June 25, 1996, we affirmed his conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this court's affirmation of his death sentence and raises for
the first time the issue of the constitutionality of R.A. 7659. His thesis is two-fold: (1) that the death penalty law is
unconstitutional per se for having been enacted in the absence of compelling reasons therefor; and (2) that the death
penalty for rape is a cruel, excessive and inhuman punishment in violation of the constitutional proscription against
punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused-appellant's view that Congress enacted R.A.
No. 7659 without complying with the twin requirements of compelling reasons and heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A. No. 7659 as unfurled in the beginning of
this disquisition, necessarily provide the context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress the power to re-impose the death
penalty "for compelling reasons involving heinous crimes". This power is not subsumed in the plenary legislative
power of Congress, for it is subject to a clear showing of "compelling reasons involving heinous crimes."
The constitutional exercise of this limited power to re-impose the death penalty entails (1) that Congress define
or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death, only crimes that qualify
as heinous in accordance with the definition or description set in the death penalty bill and/or designate crimes
punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance of
circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or
description set in the death penalty bill; and (3) that Congress, in enacting this death penalty bill be singularly
motivated by "compelling reasons involving heinous crimes."
In the second whereas clause of the preamble of R.A. No. 7659, we find the definition or description of heinous
crimes. Said clause provides that
"x x x the crimes punishable by death under this Act are heinous for being grievous, odious and hateful
offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are
repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and
ordered society."

Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando, [40] traced the etymological root of the word
"heinous" to the Early Spartans' word, "haineus", meaning, hateful and abominable, which, in turn, was from the Greek
prefix "haton", denoting acts so hatefully or shockingly evil.
We find the foregoing definition or description to be a sufficient criterion of what is to be considered a heinous
crime. This criterion is deliberately undetailed as to the circumstances of the victim, the accused, place, time, the
manner of commission of crime, its proximate consequences and effects on the victim as well as on society, to afford
the sentencing authority sufficient leeway to exercise his discretion in imposing the appropriate penalty in cases where
R.A. No. 7659 imposes not a mandatory penalty of death but the more flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and Taada grilled the sponsors of the bill
as regards what they perceived as a mere enumeration of capital crimes without a specification of the elements that
make them heinous. They were oblivious to the fact that there were two types of crimes in the death penalty bill: first,
there were crimes penalized by reclusion perpetua to death; and second, there were crimes penalized by mandatory
capital punishment upon the attendance of certain specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death:
(1) Treason (Sec. 2);

(2) Qualified piracy (Sec. 3);

(3) Parricide (Sec. 5);

(4) Murder (Sec. 6);

(5) Infanticide (Sec. 7);

(6) Kidnapping and serious illegal detention if attended by any of the following four circumstances: (a) the victim
was detained for more than three days; (b) it was committed simulating public authority; (c) serious physical injuries
were inflicted on the victim or threats to kill him were made; and (d) if the victim is a minor, except when the
accused is any of the parents, female or a public officer (Sec. 8);

(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);

(8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building where people usually
gather; (c) a train, ship or airplane for public use; (d) a building or factory in the service of public utilities; (e) a
building for the purpose of concealing or destroying evidence Or a crime; (f) an arsenal, fireworks factory, or
government museum; and (g) a storehouse or factory of explosive materials located in an inhabited place; or
regardless of what is burned, if the arson is perpetrated by two or more persons (Sec. 10);

(9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly weapon; (b) the
rape is committed by two or more persons; and (c) the rape is attempted or frustrated and committed with homicide
(Sec. 11);

(10) Plunder involving at least P50 million (Sec. 12);

(11) Importation of prohibited drugs (Sec. 13);

(12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.);

(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);

(14) Manufacture of prohibited drugs (id.);

(15) Possession or use of prohibited drugs in certain specified amounts (id.);

(16) Cultivation of plants which are sources of prohibited drugs (id.)

(17) Importation of regulated drugs (Sec. 14);

(18) Manufacture of regulated drugs (id.);

(19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs (id.);

(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15);

(21) Possession or use of regulated drugs in specified amounts (Sec. 16);

(22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the arresting officer
(Sec. 17);

(23) Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec.
19); and

(24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped (Sec. 20).

All the foregoing crimes are not capital crimes per se, the uniform penalty for all of them being not mandatory death
but the flexible penalty of reclusion perpetua to death. In other words, it is premature to demand for a specification of
the heinous elements in each of foregoing crimes because they are not anyway mandatorily penalized with death. The
elements that call for the imposition of the supreme penalty of death in these crimes, would only be relevant when the
trial court, given the prerogative to impose reclusion perpetua, instead actually imposes the death penalty because it
has, in appreciating the evidence proffered before it, found the attendance of certain circumstances in the manner by
which the crime was committed, or in the person of the accused on his own or in relation to the victim, or in any other
matter of significance to the commission of the crime or its effects on the victim or on society, which circumstances
characterize the criminal acts as grievous, odious, or hateful, or inherently or manifestly wicked, vicious, atrocious or
perverse as to be repugnant and outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.
On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the following crimes:
(1) Qualified bribery

"If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender
who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise,
gift or present, he shall suffer the penalty for the offense which was not prosecuted.

If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death." (Sec. 4)

(2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped,
tortured or subjected to dehumanizing acts

"The penalty shall be death where the kidnapping or detention was committed for the purpose of ransom from the
victim or any other person, even if none of the circumstances above-mentioned were present in the commission of
the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subject to torture or
dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8)

(3) Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory
penalty of death shall be imposed." (Sec. 10)

(4) Rape with the victim becoming insane, rape with homicide and qualified

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

xxx xxx xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

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

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent
or the victim.

2. when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the
third degree of consanguinity.

4. when the victim is a religious or a child below seven (7) years old

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or
any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." (Sec. 11
)

(5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the victim is a minor
or the victim dies

"Notwithstanding the provision of Section 20 of this Act to the contrary, 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 victim
thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 13)

(6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty [of death]
shall be imposed in every case where a prohibited drug is administered, delivered or sold to a minor who is allowed
to use the same in such place.

Should a prohibited drug be the proximate case of the death of a person using the same in such den, dive or resort,
the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section
20 of this Act to the contrary." (Sec. 13)

(7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs where the victim
is a minor or the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or
should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 14)

(8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of death] herein
provided shall be imposed in every case where a regulated drug is administered, delivered or sold to a minor who is
allowed to use the same in such place.

Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or resort, the
maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20
of this Act to the contrary." (Sec. 15)

(9) Drug offenses if convicted are government officials, employees or officers including members of police
agencies and armed forces

"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and
Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed,
if those found guilty or any of the same offenses are government officials, employees or officers including members
of police agencies and the armed forces." (Sec. 19)

(10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if convicted are
government officials, employees or officers

"Any such above government official, employee or officer who is found guilty of 'planting' any dangerous drugs
punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the
Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another as evidence to implicate the
latter, shall suffer the same penalty as therein provided." (Sec. 19)

(11) In all the crimes in RA. No. 7659 in their qualified form

"When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be
imposed shall be in its maximum [of death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an
organized/syndicated crime group.

An organized/syndicated crime group means a group of two or more persons collaborating, confederating or
mutually helping one another for purposes of gain in the commission of any crime." (Sec. 23)

It is specifically against the foregoing capital crimes that the test of heinousness must be squarely applied.
The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human being. The right of a person is not only to live but to live a
quality life, and this means that the rest of society is obligated to respect his or her individual personality, the integrity
and the sanctity of his or her own physical body, and the value he or she puts in his or her own spiritual, psychological,
material and social preferences and needs. Seen in this light, the capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing
acts; destructive arson resulting in death, and drug offenses involving minors or resulting in the death of the victim in
the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention where
the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to
kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson,
and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized
by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be
struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical
rule that bankrupted the government and impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply
entrenched itself in the structures of society and psyche of the populace. Terribly lacking the money to provide even
the most basic services to its people, any form of misappropriation or misapplication of government funds translates
to an actual threat to the very existence of government, and in turn, the very survival of the people it governs
over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and damage to society.
We have no doubt, therefore, that insofar as the element of heinousness is concerned, R.A. No. 7659 has correctly
identified crimes warranting the mandatory penalty of death. As to the other crimes in R.A. No. 7659 punished
by reclusion perpetua to death, they are admittingly no less abominable than those mandatorily penalized by
death. The proper time to determine their heinousness in contemplation of law, is when on automatic review, we are
called to pass on a death sentence involving crimes punishable by reclusion perpetua to death under R.A. No. 7659,
with the trial court meting out the death sentence in exercise of judicial discretion. This is not to say, however, that
the aggravating circumstances under the Revised Penal Code need be additionally alleged as establishing the
heinousness of the crime for the trial court to validly impose the death penalty in the crimes under R.A. No. 7659
which are punished with the flexible penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the provisions of the Revised Penal Code
relating to aggravating circumstances. Secondly, R.A. No. 7659, while it specifies circumstances that generally
qualify a crime provided therein to be punished by the maximum penalty of death, neither amends nor repeals the
aggravating circumstances under the Revised Penal Code. Thus, construing R.A. No. 7659 in parimateria with the
Revised Penal Code, death may be imposed when (1) aggravating circumstances attend the commission of the crime
as to make operative the provision of the Revised Penal Code regarding the imposition of the maximum penalty; and
(2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in
contemplation of R.A. No. 7659 that justify the imposition of the death, albeit the imposable penalty is reclusion
perpetua to death. Without difficulty, we understand the rationale for the guided discretion granted in the trial court
to cognize circumstances that characterize the commission of the crime as heinous. Certainly there is an infinity of
circumstances that may attend the commission of a crime to the same extent that there is no telling the evil that man
is capable of. The legislature cannot and need not foresee and inscribe in law each and every loathsome act man is
capable of. It is sufficient thus that R.A. 7659 provides the test and yardstick for the determination of the legal
situation warranting the imposition of the supreme penalty of death. Needless to say, we are not unaware of the ever
existing danger of abuse of discretion on the part of the trial court in meting out the death sentence. Precisely to reduce
to nil the possibility of executing an innocent man or one criminal but not heinously criminal, R.A. 7659 is replete
with both procedural and substantive safeguards that ensure only the correct application of the mandate of R.A. No.
7659.
In the course of the congressional debates on the constitutional requirement that the death penalty be re-imposed
for compelling reasons involving heinous crimes, we note that the main objection to the death penalty bill revolved
around the persistent demand of the abolitionists for a statement of the reason in each and every heinous crime and
statistical proof the such compelling reason actually exists.
We believe, however, that the elements of heinousness and compulsion are inseparable and are, in fact,
interspersed with each other. Because the subject crimes are either so revolting and debasing as to violate the most
minimum of the human standards of decency or its effects, repercussions, implications and consequences so
destructive, destabilizing, debilitating, or aggravating in the context of our socio-political and economic agenda as a
developing nation, these crimes must be frustrated, curtailed and altogether eradicated. There can be no ifs or buts in
the face of evil, and we cannot afford to wait until we rub elbows with it before grasping it by the ears and thrashing
it to its demission.
The abolitionists in congress insisted that all criminal reforms first be pursued and implemented before the death
penalty be re-imposed in case such reforms prove unsuccessful. They claimed that the only compelling reason
contemplated of by the constitution is that nothing else but the death penalty is left for the government to resort to that
could check the chaos and the destruction that is being caused by unbridled criminality. Three of our colleagues, are
of the opinion that the compelling reason required by the constitution is that there occurred a dramatic and significant
change in the socio-cultural milieu after the suspension of the death penalty on February 2, 1987 such as an
unprecedented rise in the incidence of criminality. Such are, however, interpretations only of the phrase "compelling
reasons" but not of the conjunctive phrase "compelling reasons involving heinous crimes". The imposition of the
requirement that there be a rise in the incidence of criminality because of the suspension of the death penalty,
moreover, is an unfair and misplaced demand, for what it amounts to, in fact, is a requirement that the death penalty
first proves itself to be a truly deterrent factor in criminal behavior. If there was a dramatically higher incidence of
criminality during the time that the death penalty was suspended, that would have proven that the death penalty was
indeed a deterrent during the years before its suspension. Suffice it to say that the constitution in the first place did
not require that the death penalty be first proven to be a deterrent; what it requires is that there be compelling reasons
involving heinous crimes.
Article III, Section 19 (1) of the 1987 Constitution simply states that congress, for compelling reasons involving
heinous crimes, may re-impose the death penalty. Nothing in the said provision imposes a requirement that for a death
penalty bill to be valid, a positive manifestation in the form of a higher incidence of crime should first be perceived
and statistically proven following the suspension of the death penalty. Neither does the said provision require that the
death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in
society. It is immaterial and irrelevant that R.A. No. 7659 cites that there has been an "alarming upsurge of such
crimes", for the same was never intended by said law to be the yardstick to determine the existence of compelling
reasons involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that "the Congress, in the interest of
justice, public order and rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes,
finds compelling reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for attacking the constitutionality of R.A. No. 7659,
i.e., that the death penalty imposed in rape is violative of the constitutional proscription against cruel, degrading or
inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel, degrading or inhuman punishment as ruled
by the United States (U.S.) Supreme Court in Furman v. Georgia. [41] To state, however, that the U.S. Supreme Court,
in Furman, categorically ruled that the death penalty is a cruel, degrading or inhuman punishment, is misleading and
inaccurate.
The issue in Furman was not so much death penalty itself but the arbitrariness pervading the procedures by which
the death penalty was imposed on the accused by the sentencing jury. Thus, the defense theory in Furman centered
not so much on the nature of the death penalty as a criminal sanction but on the discrimination against the black
accused who is meted out the death penalty by a white jury that is given the unconditional discretion to determine
whether or not to impose the death penalty. In fact, the long road of the American abolitionist movement leading to
the landmark case of Furman was trekked by American civil rights advocates zealously fighting against racial
discrimination. Thus, the U.S. Supreme Court stated in Furman:
"We cannot say from facts disclosed in these records that these defendants were sentenced to death because they
were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather,
we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the
determination whether defendants committing these crimes should die x x x.

xxx

In a Nation committed to equal protection of the laws there is no permissible 'caste' aspect of law enforcement. Yet
we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively
applied, feeding prejudices against the accused if he is poor and despised x x x.

xxx

Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and
discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban
on 'cruel and unusual' punishments."

Furman, thus, did not outlaw the death penalty because it was cruel and unusual per se. While the U.S. Supreme
Court nullified all discretionary death penalty statutes in Furman, it did so because the discretion which these statutes
vested in the trial judges and sentencing juries was uncontrolled and without any parameters, guidelines, or standards
intended to lessen, if not altogether eliminate, the intervention of personal biases, prejudices and discriminatory acts
on the part of the trial judges and sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-enacted their death penalty statutes now
bearing the procedural checks that were required by the U.S. Supreme Court, said court affirmed the constitutionality
of the new death penalty statutes in the cases of Gregg v. Georgia, [42] Jurek v. Texas,[43] and Profitt v. Florida.[44]
Next, accused-appellant asseverates that the death penalty is a cruel, inhuman or degrading punishment for the
crime of rape mainly because the latter, unlike murder, does not involve the taking of life. In support of his contention,
accused-appellant largely relies on the ruling of the U.S. Supreme Court in Coker v. Georgia. [45]
In Coker, the U.S. Supreme Court ruled as follows:
"x x x It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of
the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it
always disproportionate to the crime for which it is imposed. It is also established that imposing capital punishment,
at least for murder, in accordance with the procedures provided under the Georgia statutes saves the sentence from
the infirmities which led the Court to invalidate the prior Georgia capital punishment statute in Furman v. Georgia x
x x.

xxx

In Gregg [v. Georgia] x x x the Court's judgment was that the death penalty for deliberate murder was neither the
purposeless imposition of severe punishment nor a punishment grossly disproportionate to the crime. But the Court
reserved the question of the constitutionality of the death penalty when imposed for other crimes. x x x

That question, with respect to rape of an adult woman, is now before us.

xxx

x x x [T]he public judgment with respect to rape, as reflected in the statutes providing the punishment for that
crime, has been dramatically different. In reviving death penalty laws to satisfy Furman's mandate, none of the
States that had not previously authorized death for rape chose to include rape among capital felonies. Of the 16
States in which rape had been a capital offense, only three provided the death penalty for rape of an adult woman in
their revised statutes -- Georgia, North Carolina. and Louisiana. In the latter two States, the death penalty was
mandatory for those found guilty, and those laws were invalidated by Woodson and Roberts. When Louisiana and
North Carolina, respondent to those decisions, again revised their capital punishment laws, they reenacted the death
penalty for murder but not for rape; none of the seven other legislatures that to our knowledge have amended or
replaced their death penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North
Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to Furman with mandatory
statutes, included rape among the crimes for which death was an authorized punishment.

xxx

It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in some rape cases, but
only where the victim was a child, and the rapist an adult, the Tennessee statute has since been invalidated because
the death sentence was mandatory. x x x The upshot is that Georgia is the sole jurisdiction in the United States at
the present time that authorizes a sentence of death when the rape victim is an adult woman, and only two other
jurisdictions provide capital punishment when the victim is a child

The current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures,
but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an
adult woman.

x x x [T]he legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that
death is indeed a disproportionate penalty for the crime of raping an adult woman.

We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its
almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of
choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate
violation of self.' It is also a violent crime because it normally involves force, or the threat of force or intimidation,
to over come the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to
the female and can also inflict mental and psychological damage. Because it undermines the community's sense of
security, there is public injury as well.

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the
person and to the public, it does not compare with murder, which does involve the unjustified taking of human
life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the
serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the
victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally
is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and
irrevocability' x x x is an excessive penalty for the rapist who, as such, does not take human life."

The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the public has manifested its
rejection of the death penalty as a proper punishment for the crime of rape through the willful omission by the state
legislatures to include rape in their new death penalty statutes in the aftermath of Furman; and second, that rape, while
concededly a dastardly contemptuous violation of a woman's spiritual integrity, physical privacy, and psychological
balance, does not involve the taking of life.
Anent the first ground, we fail to see how this could have any bearing on the Philippine experience and in the
context of our own culture.
Anent the second ground, we disagree with the court's predicate that the gauge of whether or not a crime warrants
the death penalty or not, is the attendance of the circumstance of death on the part of the victim. Such a premise is in
fact an ennobling of the biblical notion of retributive justice of "an eye for an eye, a tooth for a tooth". We have
already demonstrated earlier in our discussion of heinous crimes that the forfeiture of life simply because life was
taken, never was a defining essence of the death penalty in the context of our legal history and cultural experience;
rather, the death penalty is imposed in heinous crimes because the perpetrators thereof have committed unforgivably
execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the
national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined
and honest citizenry, and because they have so caused irreparable and substantial injury to both their victim and the
society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of
government, they must be permanently prevented from doing so. At any rate, this court has no doubts as to the innate
heinousness of the crime of rape, as we have held in the case of People v. Cristobal: [46]
"Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape
deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes
grave damage that can mark the victim for life. It is always an intrinsically evil act xxx an outrage upon decency and
dignity that hurts not only the victim but the society itself."

We are not unaware that for all the legal posturings we have so essayed here, at the heart of the issue of capital
punishment is the wistful, sentimental life-and-death question to which all of us, without thinking, would answer,
"life, of course, over death". But dealing with the fundamental question of death provides a context for struggling
with even more basic questions, for to grapple with the meaning of death is, in an indirect way, to ask the meaning of
life. Otherwise put, to ask what the rights are of the dying is to ask what the rights are of the living.
"Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive
than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to
preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in
order that tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is a x x x
necessary, if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. To do
otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social
survival." [47]

WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and the Supplemental Motion for
Reconsideration are hereby DENIED[48] for LACK OF MERIT.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5,
2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision1 dated March 22, 2007 and
Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the
Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b)
of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in
1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing
that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino
and offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a woman's bracelet;
one (1) men's necklace and another men's bracelet, with an aggregate value of ₱98,000.00, as evidenced by a receipt
of even date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the
same items, within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or
returning the pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the former
that he will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, after having received from one Danilo Tangcoy, one (1) men's
diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1) two-baht
ladies' bracelet, 22k, worth ₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (₱98,000.00),
Philippine currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the
said items or to return the same, if not sold, said accused, once in possession of the said items, with intent to defraud,
and with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did then
and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and
benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused
failed and refused to return the said items or to remit the amount of Ninety- Eight Thousand Pesos (₱98,000.00),
Philippine currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter, trial on
the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the other
hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing
business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner
denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank
receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the
supposed agreement to sell the subject pieces of jewelry, which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The
dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under
Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an
imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of
Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the
amount of ₱98,000.00 as actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the
RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San
Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such
that accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as
minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional ₱10,000.00, or a total of 7 years.
The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the
following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND

APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS,
WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH
THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL
CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES
OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE
REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION

AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO
BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE

INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD

AND LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-
arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts
complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight when said court
affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the
records, or that they are so glaringly erroneous as to constitute grave abuse of discretion. 4 Petitioner is of the opinion
that the CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both
procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated
May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating
the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said
evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also
correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer
of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered
as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He
contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned
and that the date when the crime occurred was different from the one testified to by private complainant. This
argument is untenable. The CA did not err in finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance in the Information cannot be made for the first
time on appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b)
of the RPC is the appropriation or conversion of money or property received to the prejudice of the owner 6 and that
the time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong
date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA
ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the
acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or
information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate time of the commission of the offense, and the place wherein the
offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing
rule. That the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is
not likewise fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of the
precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under
Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof
is not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date does
not render the Information ipso facto defective. Moreover, the said date is also near the due date within which
accused-appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by
Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be
allowed to claim that he was not properly apprised of the charges proferred against him. 7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the
RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property
received by the offender in trust or on commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a
bond; or by denying having received such money, goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is
received by the offender in trust, or on commission, or for administration, or under any other obligation involving
the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money
or property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or
denial is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender. 8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was
not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner
after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items
with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July
1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me
that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9
No specific type of proof is required to show that there was demand. 10 Demand need not even be formal; it may be
verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person
charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount
to a demand.12 As expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be
formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa
under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have
stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and
oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we
held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It
so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence
of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at
bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the
elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as
shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold.
There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale
took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the
private complainant, to the prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious.
Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the
trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the
witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The
assessment by the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact
or circumstance of weight and influence, especially when such finding is affirmed by the CA. 16 Truth is established
not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of
evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the continued
validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged
these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code. Since the
members of the division reached no unanimity on this question and since the issues are of first impression, they
decided to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions on the matter. Among those that graciously
complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on oral arguments before
the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the following:

There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose on
crimes against property committed today, based on the amount of damage measured by the value of money eighty
years ago in 1932. However, this Court cannot modify the said range of penalties because that would constitute
judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the said crimes
cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch
of the government. This, however, does not render the whole situation without any remedy. It can be appropriately
presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5,
which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law,
and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be
made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as
may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense. 18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by
law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the
Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal
legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus,
the court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation.
The second paragraph is similar to the first except for the situation wherein the act is already punishable by law but
the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not
to suspend the execution of the sentence but to submit to the Chief Executive the reasons why the court considers
the said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform the Chief
Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of
the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of
the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no
punishable act except those previously and specifically provided for by penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration
with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the strict
enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do in
such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh. 20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired
Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code,21 echoed the above-cited
commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with
mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether
or not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not
severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to
enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited
class of excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief
Executive.22
There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or
at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this would result in uncertainties, as
opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the
proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change,
thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have
provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject penalties in order to conform with the present
times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission
of those punishable acts which have increased tremendously through the years. In fact, in recent moves of the
legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of
Plunder, from its original minimum amount of ₱100,000,000.00 plundered, the legislature lowered it to
₱50,000,000.00. In the same way, the legislature lowered the threshold amount upon which the Anti-Money
Laundering Act may apply, from ₱1,000,000.00 to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive
compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter
amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for
each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for
the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen
is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the property
stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the
property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances
enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5
pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be
made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen
is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty
of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the penalty is prision
correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the
proposal, if the value of the thing stolen is ₱6,000.00, the penalty is imprisonment of arresto mayor in its medium
period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that
under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application
of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree;
hence, the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6
months), making the offender qualified for pardon or parole after serving the said minimum period and may even
apply for probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence
Law is arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too
far from the minimum period under the existing law. Thus, it would seem that the present penalty imposed under the
law is not at all excessive. The same is also true in the crime of Estafa. 23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the
damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the basis
of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no longer be
commensurate to the act committed and the value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by prision mayor

minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision correccional

medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years). 24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision correccional

minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor medium to prision
correccional minimum (2 months and 1 day to 2 years and 4 months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month and 1 day to 6
months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not
changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by prision

correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years). 25

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months). 26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto mayor maximum
to prision correccional minimum (4 months and 1 day to 2 years and 4 months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6
months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental
penalty provided under Article 315 of the RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which is determined according to a valid classification.
The test developed by jurisprudence here and yonder is that of reasonableness, 27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class. 28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions as
₱10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR
was devised so that those who commit estafa involving higher amounts would receive heavier penalties; however,
this is no longer achieved, because a person who steals ₱142,000.00 would receive the same penalty as someone
who steals hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3,
considering that the IPR is limited to existing conditions at the time the law was promulgated, conditions that no
longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article
315 unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case
the amount of the thing subject matter of the crime exceeds ₱22,000.00? It seems that the proposition poses more
questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters
to Congress for them to exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to
Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is
absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand
(₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then
that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00) Pesos ...
DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand (₱22,000.00) Pesos you
were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:
Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand (₱22,000.00)
Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment.
Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the
application of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the
penalty, and not just its form. The court therein ruled that three things must be done to decide whether a sentence is
proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the
penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious
crimes are subject to the same penalty or to less serious penalties; and (3) Compare the sentences imposed for
commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent
therein deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the
latter’s recidivist statute and not the original penalty for uttering a "no account" check. Normally, the maximum
punishment for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent
was sentenced to life imprisonment without the possibility of parole under South Dakota’s recidivist statute because
of his six prior felony convictions. Surely, the factual antecedents of Solem are different from the present
controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high.
Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the
commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her
employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such
person the protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal of that
trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such
wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the
crime and which, by adopting the proposal, may create serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the amount of the money malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by
reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take
or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such
public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of
such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than
two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more
than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a
fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the
offender. Thus, following the proposal, if the amount malversed is ₱200.00 (under the existing law), the amount
now becomes ₱20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4
months and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement of ₱20,000.00
compared to the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the
Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not
generally defined by any monetary amount, the penalty (6 years and 1 month to 15 years) 32 under the Anti-Graft
Law will now become higher. This should not be the case, because in the crime of malversation, the public official
takes advantage of his public position to embezzle the fund or property of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where
the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and also,
in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken,
as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no
longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime
of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by
prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not
exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things,
it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the
penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the
unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto
mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused
exceeds ₱1,000.00, but under the proposal, the value of the damage will now become ₱100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not
exceed ₱200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not more
than ₱200.00, if the amount involved does not exceed ₱200.00 or cannot be estimated. Under the proposal, ₱200.00
will now become ₱20,000.00, which simply means that the fine of ₱200.00 under the existing law will now become
₱20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature despite the
fact that the offense is categorized as a light felony penalized with a light penalty under Article 26 of the
RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but
changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally
feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such as
those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit: Article
311 (Theft of the property of the National Library and National Museum), Article 312 (Occupation of real property
or usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious
mischief) and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes that
impose Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and similar
offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to
render accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable
by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as
amended.34The law treats cutting, gathering, collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of qualified theft. 35 Under the law, the offender shall be
punished with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means that the
penalty imposable for the offense is, again, based on the value of the timber or forest products involved in the
offense. Now, if we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the soundness of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other related
provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and
necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no
position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of
the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who,
after due proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even
create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral
arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the
Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to archaic
laws that were promulgated decades ago when the political, socio-economic, and cultural settings were far different
from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative
powers by judicial legislation and that in the course of such application or construction, it should not make or
supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law,
or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that
would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly
put, the Court should shy away from encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means
of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by
the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos,
even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the
court, unless the deceased on account of permanent physical disability not caused by the defendant, had no
earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who
is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand
support from the person causing the death, for a period not exceeding five years, the exact duration to be
fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused, which in a sense
only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as
restitution. Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to
the value of a thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain
crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same
reasoning that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law
only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did not provide for a
ceiling. Thus, although the minimum amount for the award cannot be changed, increasing the amount awarded as
civil indemnity can be validly modified and increased when the present circumstance warrants it. Corollarily, moral
damages under Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is
discretionary upon the court, depending on the mental anguish or the suffering of the private offended party. The
amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of
civil indemnity.
In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel
punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive
or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply
the law, especially when they are clear and not subject to any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the incremental penalty
provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to
the amount of ₱22,000.00, regardless if the actual amount involved exceeds ₱22,000.00. As suggested, however,
from now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular course of criminal justice would occur when every accused
convicted of the crime of estafa will be meted penalties different from the proper penalty that should be imposed.
Such drastic twist in the application of the law has no legal basis and directly runs counter to what the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 7659 40 in December 1993. The said law has been questioned before
this Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty
was re-imposed until its lifting in June 2006 by Republic Act No. 9346, 41 the Court did not impede the imposition of
the death penalty on the ground that it is a "cruel punishment" within the purview of Section 19 (1), 42 Article III of
the Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that
led to its non-imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from
which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process,
considering that the State and the concerned parties were not given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality
issues must be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues never
touched upon the constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of duration or amount, and applies to punishments
which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the
pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not
thus be within the prohibition. 44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.
Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and
plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the
community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to
the present value of money based only on the current inflation rate. There are other factors and variables that need to
be taken into consideration, researched, and deliberated upon before the said values could be accurately and properly
adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the likes must be
painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to
conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code.
This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to
wit:

xxxx
JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into
consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic
terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred
(₱100.00) Pesos to ...
JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power
that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court
is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in
the present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but consider
the proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into
consideration "changed conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute.
The issue is no different from the Court’s adjustment of indemnity in crimes against persons, which the Court had
previously adjusted in light of current times, like in the case of People v. Pantoja. 47 Besides, Article 10 of the Civil
Code mandates a presumption that the lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals
ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is
truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court
should refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to
civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value
of money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value
of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be
awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed.
Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC
imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period,
as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum.
However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a
total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly instructive,
thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow
shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the
amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in
connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65 of the
same Code requires the division of the time included in the penalty into three equal portions of time included in the
penalty prescribed, forming one period of each of the three portions. Applying the latter provisions, the maximum,
medium and minimum periods of the penalty prescribed are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days 49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor
minimum should be divided into three equal portions of time each of which portion shall be deemed to form one
period in accordance with Article 6550 of the RPC.51 In the present case, the amount involved is ₱98,000.00, which
exceeds ₱22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to
the penalty for every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall the total penalty
which may be imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by law, then, adding
one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months and 21 days to 8 years of prision
mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years,
plus an additional 7 years, the maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against
petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and
2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court
should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most
expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on
prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby
DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court
of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch
46, San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the
penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2)
MONTHS and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion
temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the
Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of
Representatives.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I),
FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias
"Taba," respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any
person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the
Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the
respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted
a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file
the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of
Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused,
feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an
outlawed and illegal organization aimed to overthrow the Government of the Philippines by means
of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in
the Philippines a totalitarian regime and placing the government under the control and domination
of an alien power, by being an instructor in the Mao Tse Tung University, the training school of
recruits of the New People's Army, the military arm of the said Communist Party of the
Philippines.

That in the commission of the above offense, the following aggravating circumstances are present,
to wit:

(a) That the crime has been committed in contempt of or with insult to public authorities;

(b) That the crime was committed by a band; and afford impunity.
 (c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.

Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo
Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as
amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the
Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated
June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA,
ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL
ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose
identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the
Anti-Subversion Law, committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of
Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the
above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as
offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization
as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in
addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and
became an officer and/or ranking leader not only of the Communist Party of the Philippines but
also of the New People's Army, the military arm of the Communist Party of the Philippines; and
that all the above-named accused, as such officers and/or ranking leaders of the aforestated
subversive organizations, conspiring, confederating and mutually helping one another, did then
and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by
inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up
arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force, violence, deceit, subversion and/or other
illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted meetings and/or
seminars wherein the said accused delivered speeches instigating and inciting the people to unite,
rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence,
deceit, subversion and/or other illegal means; and toward this end, the said accused organized,
among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac
for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and
overthrow the Government of the Republic of the Philippines and to established in the Philippines
a Communist regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO
PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious
activities in San Pablo City by recruiting members for the New People's Army, and/or by
instigating and inciting the people to organize and unite for the purpose of overthrowing the
Government of the Republic of the Philippines through armed revolution, deceit, subversion
and/or other illegal means, and establishing in the Philippines a Communist Government.

That the following aggravating circumstances attended the commission of the offense: (a) aid of
armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of
attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied
him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute
void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations
against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action
for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be
enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the
substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of attainder
serves to implement the principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of
attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the
constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a
legislative intent, suffice to stigmatizea statute as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars
and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the
country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the
trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the
guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the
only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill
of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope
to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the
Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be
an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4,
against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for
definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and
Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore
unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —

(1) as an officer, director, trustee, member of any executive board or similar governing body,
business agent, manager, organizer, or other employee (other than as an employee performing
exclusively clerical or custodial duties) of any labor organization.

during or for five years after the termination of his membership in the Communist Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000 or
imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the
Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body
of any labor organization. As the Supreme Court of the United States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure
Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from positions affecting interstate
commerce persons who may use of such positions to bring about political strikes. In section 504,
however, Congress has exceeded the authority granted it by the Constitution. The statute does not
set forth a generally applicable rule decreeing that any person who commits certain acts or
possesses certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job
of deciding what persons have committed the specified acts or possessed the specified
characteristics. Instead, it designates in no uncertain terms the persons who possess the feared
characteristics and therefore cannot hold union office without incurring criminal liability
— members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357,

lend a support to our conclusion. That case involved an appeal from an order by the Control Board
ordering the Communist Party to register as a "Communist-action organization," under the
Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The
definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of
the Act:

[A]ny organization in the United States ... which (i)is substantially directed, dominated, or
controlled by the foreign government or foreign organization controlling the world Communist
movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives
of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that
sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to
be imposed, but instead sets forth a general definition. Although the Board has determined in 1953
that the Communist Party was a "Communist-action organization," the Court found the statutory
definition not to be so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that
the Communist Party, by virtud of the activities in which it now engages, comes within the terms
of the Act. If the Party should at anytime choose to abandon these activities, after it is once
registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d
at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in
court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their
guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the
Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and
with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and
other illegal means and place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of
knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred
to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be
correct if the statute were construed as punishing mere membership devoid of any specific intent to further the
unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with
specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that
membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The
ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This
constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof
of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to
the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render
it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as
officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be
subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill
of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty
to register, and punishing any person who becomes a member of such society which fails to register or remains a
member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku
Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the
Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party
and that they are not members of any organization which teaches the overthrow of the Government by force or by
any illegal or unconstitutional method," was upheld by this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in
such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon
this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the
United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited
the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages
in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or
employee of a labor union, 24 have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially
noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such
determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-
bound society with a membership of at least twenty to register, and punishing any person who joined or remained a
member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the
law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku
Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of
Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku
Klux Klan. The Court said:

The courts below recognized the principle shown in the cases just cited and reached the conclusion
that the classification was justified by a difference between the two classes of associations shown
by experience, and that the difference consisted (a) in a manifest tendency on the part of one class
to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical
to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the
other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal
association in the included class: "It is a matter of common knowledge that this organization
functions largely at night, its members disguised by hoods and gowns and doing things calculated
to strike terror into the minds of the people;" and later said of the other class: "These organizations
and their purposes are well known, many of them having been in existence for many years. Many
of them are oath-bound and secret. But we hear no complaint against them regarding violation of
the peace or interfering with the rights of others." Another of the courts said: "It is a matter of
common knowledge that the association or organization of which the relator is concededly a
member exercises activities tending to the prejudice and intimidation of sundry classes of our
citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor
 unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent
Orders Law have already received legislative scrutiny and have been granted special privileges so
that the legislature may well consider them beneficial rather than harmful agencies." The third
court, after recognizing "the potentialities of evil in secret societies," and observing that "the
danger of certain organizations has been judicially demonstrated," — meaning in that state, —
said: "Benevolent orders, labor unions and college fraternities have existed for many years, and,
while not immune from hostile criticism, have on the whole justified their existence."

We assume that the legislature had before it such information as was readily available including
the published report of a hearing, before a committee of the House of Representatives of the 57th
Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was
advised — putting aside controverted evidence — that the order was a revival of the Ku Klux
Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A.
orders of other periods; that its memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the widest freedom for all and full
adherence to the Constitution of the United States; in another exacted of its member an oath to
shield and preserve "white supremacy;" and in still another declared any person actively opposing
its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the
weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews,
and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political
power and assuming a sort of guardianship over the administration of local, state and national
affairs; and that at times it was taking into its own hands the punishment of what some of its
members conceived to be crimes. 27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In
1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that
the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the
Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently,
in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of
Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the
New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about
the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus
been and still are engaged in rebellion against the Government of the Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the
prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This
requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter
observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it
is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive
that it cannot be a bill of attainder." 31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City
of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in the service
of the City of Los Angeles, in any office or department thereof, either elective or appointive, who
has within five (5) years prior to the effective date of this section advised, advocated, or taught, or
who may, after this section becomes effective, become a member of or affiliated with any group,
society, association, organization or party which advises, advocates or teaches or has within said
period of five (5) years advised, advocated, or taught the overthrow by force or violence of the
Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus:
 ... Immaterial here is any opinion we might have as to the charter provision insofar as it purported
to apply restrospectively for a five-year period to its effective date. We assume that under the
Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's
public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the
violent overthrow of the Government or who are or become affiliated with any group doing so.
The provisions operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the United States.

... Unlike the provisions of the charter and ordinance under which petitioners were removed, the
statute in the Lovett case did not declare general and prospectively operative standards of
qualification and eligibility for public employment. Rather, by its terms it prohibited any further
payment of compensationto named individuals or employees. Under these circumstances, viewed
against the legislative background, the statutewas held to have imposed penalties without judicial
trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe
demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare
inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct
of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it
regulates is describedwith such particularity that, in probability, few organizationswill come
within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to
the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So
long as the incidence of legislation issuch that the persons who engage in the regulated conduct,
bethey many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the
prohibition therein applies only to acts committed"After the approval of this Act." Only those who
"knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party
of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those
whowere members of the Party or of any other subversive associationat the time of the enactment of the law,
weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons
from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis
an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a
legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4.
Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise
mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an
organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by
force and violence but also by deceit, subversionand other illegal means, for the purpose of
establishing in thePhilippines a totalitarian regime subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a
clear, present andgrave danger to the security of the Philippines;
 ... [I]n the face of the organized, systematice and persistentsubversion, national in scope but
international in direction,posed by the Communist Party of the Philippines and its activities,there
is urgent need for special legislation to cope withthis continuing menace to the freedom and
security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe
statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper
account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial
distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise
a question of legislativefact, i.e., whether this standard has a reasonable relationto public health,
morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages
(assuming itis not so vague as to require supplementation by rule-making)would raise a question
of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the
statuteand the limits on governmental action imposed by the Constitution. Of course what we
mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts — those facts which are relevant to the
legislative judgment — will not be canvassed save to determine whether there is a rationalbasis for
believing that they exist, while adjudicativefacts — those which tie the legislative enactment to the
litigant — are to be demonstrated and found according to the ordinarystandards prevailing for
judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are
seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio."
The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof
1950 (that "Communist-action organizations" are controlledby the foreign government controlling the
worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist
movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject them....They
are the productof extensive investigation by Committes of Congress over morethan a decade and a
half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as
unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable
appraisal by Congress of the threatwhich Communist organizations pose not only to existing
governmentin the United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of thisnature is
extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act.

That the Government has a right to protect itself againstsubversion is a proposition too plain to require
elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif
a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As
Chief Justice Vinson so aptly said in Dennis vs. United States: 41
 Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against
dictatorial governmentsis without force where the existing structure of government provides for
peaceful and orderly change. We rejectany principle of governmental helplessness in the face of
preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy.
No one could conceive that it isnot within the power of Congress to prohibit acts intended
tooverthrow the government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and
substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end
can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished
from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive
organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization; and when
membership is acceptedor retained with knowledge that the organization is engaged inan unlawful
purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to
the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the
Government and overthrow may be achieved by peaceful means, misconceives the function of the
phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the
definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that
membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and
by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only
by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a
metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in
metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a
totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What
thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it
wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an
ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his
audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is
inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence
orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the
prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so
insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the
preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe
Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons

who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or
 violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of
persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall
be ineligible for emplymentby the United States or any department or agencythereof, for the five
years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally
protected speech, and itwas further established that a combination to promote suchadvocacy, albeit
under the aegis of what purports to be a politicalparty, is not such association as is protected by the
firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful
form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater
degree of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand
the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe
U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best
bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of
judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains
freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and
individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands
one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall
embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads:

And provided, finally, That one who conspires with anyother person to overthrow the Government
of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force,
violence, deceit, subversion or illegal means,for the purpose of placing such Government or
political subdivisionunder the control and domination of any lien power, shallbe punished
by prision correccional to prision mayor with allthe accessory penalties provided therefor in the
same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the
Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local
governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime,
evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power
likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or
Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1
providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the
subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian
regime in place of theexisting Government and not merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is
a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its
operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin
order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor
prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under
the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the
following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive
association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of
the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a
totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c)
that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich
led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by
illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined
theCPP; and (c) that he did so willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe
Philippines or of any other subversive association: weleave this matter to future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are
herebyremanded to the court a quo for trial on the merits. Costs de oficio.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18208 February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.

Araneta & Zaragoza for appellants.

Attorney-General Villareal for appellee.

JOHNSON, J.:

It appears from the record that on the 6th day of May, 1921, a complaint was presented in the Court of First Instance
of the city of Manila, charging the defendants with a violation of the Usury Law (Act No. 2655). Upon said
complaint they were each arrested, arraigned, and pleaded not guilty. The cause was finally brought on for trial on
the 1st day of September, 1921. At the close of the trial, and after a consideration of the evidence adduced, the
Honorable M. V. del Rosario, judge, found that the defendants were guilty of the crime charged in the complaint and
sentenced each of them to pay a fine of P120 and, in case of insolvency, to suffer subsidiary imprisonment in
accordance with the provisions of the law. From that sentence each of the defendants appealed to this court.

The appellants now contend: (a) That the contract upon which the alleged usurious interest was collected was
executed before Act No. 2655 was adopted; (b) that at the time said contract was made (December 30, 1915), there
was no usury law in force in the Philippine Islands; (c) that said Act No. 2655 did not become effective until the 1st
day of May, 1916, or four months and a half after the contract in question was executed; (d) that said law could have
no retroactive effect or operation, and (e) that said law impairs the obligation of a contract, and that for all of said
reasons the judgment imposed by the lower court should be revoked; that the complaint should be dismissed, and
that they should each be discharged from the custody of the law.

The essential facts constituting the basis of the criminal action are not in dispute, and may be stated as follows: (1)
That on the 30th day of December, 1915, the alleged offended persons Bartolome Oliveros and Engracia Lianco
executed and delivered to the defendants a contract (Exhibit B) evidencing the fact that the former had borrowed
from the latter the sum of P300, and (2) that, by virtue of the terms of said contract, the said Bartolome Oliveros and
Engracia Lianco obligated themselves to pay to the defendants interest at the rate of five per cent (5%) per month,
payable within the first ten days of each and every month, the first payment to be made on the 10th day of January,
1916. There were other terms in the contract which, however, are not important for the decision in the present case.

The lower court, in the course of its opinion, stated that at the time of the execution and delivery of said contract
(Exhibit B), there was no law in force in the Philippine Islands punishing usury; but, inasmuch as the defendants had
collected a usurious rate of interest after the adoption of the Usury Law in the Philippine Islands (Act No. 2655),
they were guilty of a violation of that law and should be punished in accordance with its provisions.

The law, we think, is well established that when a contract contains an obligation to pay interest upon the principal,
the interest thereby becomes part of the principal and is included within the promise to pay. In other words, the
obligation to pay interest on money due under a contract, be it express or implied, is a part of the obligation of the
contract. Laws adopted after the execution of a contract, changing or altering the rate of interest, cannot be made to
apply to such contract without violating the provisions of the constitution which prohibit the adoption of a law
"impairing the obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to perform their agreement if it is not contrary to the
law of the land, morals or public order. That law must govern and control the contract in every aspect in which it is
intended to bear upon it, whether it affect its validity, construction, or discharge. Any law which enlarges, abridges,
or in any manner changes the intention of the parties, necessarily impairs the contract itself. If a law impairs the
obligation of a contract, it is prohibited by the Jones Law, and is null and void. The laws in force in the Philippine
Islands prior to any legislation by the American sovereignty, prohibited the Legislature from giving to any penal law
a retroactive effect unless such law was favorable to the person accused. (Articles 21 and 22, Penal Code.)

A law imposing a new penalty, or a new liability or disability, or giving a new right of action, must not be construed
as having a retroactive effect. It is an elementary rule of contract that the laws in force at the time the contract was
made must govern its interpretation and application. Laws must be construed prospectively and not retrospectively.
If a contract is legal at its inception, it cannot be rendered illegal by any subsequent legislation. If that were
permitted then the obligations of a contract might be impaired, which is prohibited by the organic law of the
Philippine Islands. (U.S. vs. Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila,
40 Phil., 570.)

Ex post facto laws, unless they are favorable to the defendant, are prohibited in this jurisdiction. Every law that
makes an action, done before the passage of the law, and which was innocent when done, criminal, and punishes
such action, is an ex post facto law. In the present case Act No. 2655 made an act which had been done before the
law was adopted, a criminal act, and to make said Act applicable to the act complained of would be to give it an ex
post facto operation. The Legislature is prohibited from adopting a law which will make an act done before its
adoption a crime. A law may be given a retroactive effect in civil action, providing it is curative in character, but ex
post facto laws are absolutely prohibited unless its retroactive effect is favorable to the defendant.

For the reason, therefore, that the acts complained of in the present case were legal at the time of their occurrence,
they cannot be made criminal by any subsequent or ex post facto legislation. What the courts may say, considering
the provisions of article 1255 of the Civil Code, when a civil action is brought upon said contract, cannot now be
determined. A contract may be annulled by the courts when it is shown that it is against morals or public order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts complained of by the defendants
did not constitute a crime at the time they were committed, and therefore the sentence of the lower court should be,
and is hereby, revoked; and it is hereby ordered and decreed that the complaint be dismissed, and that the defendants
be discharged from the custody of the law, with costs de oficio. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1960 November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENTINO ABILONG, defendant-appellant.

Carlos Perfecto for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel Tomacruz for appellee.

MONTEMAYOR, J.:

Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service of sentence under
the following information:

That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the said accused,
being then a convict sentenced and ordered to serve two (2) years, four (4) months and one (1) day of
destierro during which he should not enter any place within the radius of 100 kilometers from the City of
Manila, by virtue of final judgment rendered by the municipal court on April 5, 1946, in criminal case No.
B-4795 for attempted robbery, did then and there wilfully, unlawfully and feloniously evade the service of
said sentence by going beyond the limits made against him and commit vagrancy.

Contrary to law.

Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and one (1) day of prision
correccional, with the accessory penalties of the law and to pay the costs. He is appealing from that decision with
the following assignment of error:

1. The lower court erred in imposing a penalty on the accused under article 157 of the Revised Penal Code,
which does not cover evasion of service of "destierro."

Counsel for the appellant contends that a person like the accused evading a sentence of destierro is not criminally
liable under the provisions of the Revised Penal Code, particularly article 157 of the said Code for the reason that
said article 157 refers only to persons who are imprisoned in a penal institution and completely deprived of their
liberty. He bases his contention on the word "imprisonment" used in the English text of said article which in part
reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and maximum periods
shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of
his imprisonment by reason of final judgment.

The Solicitor General in his brief says that had the original text of the Revised Penal Code been in the English
language, then the theory of the appellant could be uphold. However, it is the Spanish text that is controlling in case
of doubt. The Spanish text of article 157 in part reads thus:

ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en sus grados medio
y maximo el sentenciado que quebrantare su condena, fugandose mientras estuviere sufriendo privacion de
libertad por sentencia firme; . . . .
We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally approved and enacted
in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665, 668). It is clear that the word
"imprisonment" used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de
libertad" used in the Spanish text. It is equally clear that although the Solicitor General impliedly admits destierro as
not constituting imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present case,
the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila. This view has been
adopted in the case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil., 968) wherein this Court held, as
quoted in the brief of the Solicitor General that "it is clear that a person under sentence of destierro is suffering
deprivation of his liberty and escapes from the restrictions of the penalty when he enters the prohibited area." Said
ruling in that case was ratified by this Court, though, indirectly in the case of People vs. Jose de Jesus, (45 Off. Gaz.
Supp. to No. 9, p. 370)1, where it was held that one evades the service of his sentence of destierro when he enters
the prohibited area specified in the judgment of conviction, and he cannot invoke the provisions of the Indeterminate
Sentence Law which provides that its provisions do not apply to those who shall have escaped from confinement or
evaded sentence.

In conclusion we find and hold that the appellant is guilty of evasion of service of sentence under article 157 of the
Revised Penal Code (Spanish text), in that during the period of his sentence of destierro by virtue of final judgment
wherein he was prohibited from entering the City of Manila, he entered said City.

Finding no reversible error in the decision appealed from, the same is hereby affirmed with costs against the
appellant. So ordered.

Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-3246 November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO FORMIGONES, defendant-appellant.

Luis Contreras for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for appellee.

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the appellant guilty of
parricide and sentencing him to reclusion perpetua, to indemnify the heirs of the deceased in the amount of P2,000,
and to pay the costs. The following facts are not disputed.

In the month of November, 1946, the defendant Abelardo Formigones was living on his farm in Bahao, Libmanan,
municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his five children. From there they went to
live in the house of his half-brother, Zacarias Formigones, in the barrio of Binahian of the same municipality of
Sipocot, to find employment as harvesters of palay. After about a month's stay or rather on December 28, 1946, late
in the afternoon, Julia was sitting at the head of the stairs of the house. The accused, without any previous quarrel or
provocation whatsoever, took his bolo from the wall of the house and stabbed his wife, Julia, in the back, the blade
penetrating the right lung and causing a severe hemorrhage resulting in her death not long thereafter. The blow sent
Julia toppling down the stairs to the ground, immediately followed by her husband Abelardo who, taking her up in
his arms, carried her up the house, laid her on the floor of the living room and then lay down beside her. In this
position he was found by the people who came in response to the shouts for help made by his eldest daughter, Irene
Formigones, who witnessed and testified to the stabbing of her mother by her father.

Investigated by the Constabulary, defendant Abelardo signed a written statement, Exhibit D, wherein he admitted
that he killed The motive was admittedly of jealousy because according to his statement he used to have quarrels
with his wife for the reason that he often saw her in the company of his brother Zacarias; that he suspected that the
two were maintaining illicit relations because he noticed that his had become indifferent to him (defendant).

During the preliminary investigation conducted by the justice of the peace of Sipocot, the accused pleaded guilty, as
shown by Exhibit E. At the trial of the case in the Court of First Instance, the defendant entered a plea of not guilty,
but did not testify. His counsel presented the testimony of two guards of the provincial jail where Abelardo was
confined to the effect that his conduct there was rather strange and that he behaved like an insane person; that
sometimes he would remove his clothes and go stark naked in the presence of his fellow prisoners; that at times he
would remain silent and indifferent to his surroundings; that he would refused to take a bath and wash his clothes
until forced by the prison authorities; and that sometimes he would sing in chorus with his fellow prisoners, or even
alone by himself without being asked; and that once when the door of his cell was opened, he suddenly darted from
inside into the prison compound apparently in an attempt to regain his liberty.

The appeal is based merely on the theory that the appellant is an imbecile and therefore exempt from criminal
liability under article 12 of the Revised Penal Code. The trial court rejected this same theory and we are inclined to
agree with the lower court. According to the very witness of the defendant, Dr. Francisco Gomez, who examined
him, it was his opinion that Abelardo was suffering only from feeblemindedness and not imbecility and that he could
distinguish right from wrong.
In order that a person could be regarded as an imbecile within the meaning of article 12 of the Revised Penal Code
so as to be exempt from criminal liability, he must be deprived completely of reason or discernment and freedom of
the will at the time of committing the crime. The provisions of article 12 of the Revised Penal Code are copied from
and based on paragraph 1, article 8, of the old Penal Code of Spain. Consequently, the decisions of the Supreme
Court of Spain interpreting and applying said provisions are pertinent and applicable. We quote Judge Guillermo
Guevara on his Commentaries on the Revised Penal Code, 4th Edition, pages 42 to 43:

The Supreme Court of Spain held that in order that this exempting circumstances may be taken into
account, it is necessary that there be a complete deprivation of intelligence in committing the act, that is,
that the accused be deprived of reason; that there be no responsibility for his own acts; that he acts without
the least discernment;1 that there be a complete absence of the power to discern, or that there be a total
deprivation of freedom of the will. For this reason, it was held that the imbecility or insanity at the time of
the commission of the act should absolutely deprive a person of intelligence or freedom of will, because
mere abnormality of his mental faculties does not exclude imputability. 2

The Supreme Court of Spain likewise held that deaf-muteness cannot be equaled to imbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the
defendant had previously lost his reason or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a normal condition. Acts penalized by law are
always reputed to be voluntary, and it is improper to conclude that a person acted unconsciously, in order to
relieve him from liability, on the basis of his mental condition, unless his insanity and absence of will are
proved.

As to the strange behaviour of the accused during his confinement, assuming that it was not feigned to stimulate
insanity, it may be attributed either to his being feebleminded or eccentric, or to a morbid mental condition produced
by remorse at having killed his wife. From the case of United States vs. Vaquilar (27 Phil. 88), we quote the
following syllabus:

Testimony of eye-witnesses to a parricide, which goes no further than to indicate that the accused was
moved by a wayward or hysterical burst of anger or passion, and other testimony to the effect that, while in
confinement awaiting trial, defendant acted absentmindedly at times, is not sufficient to establish the
defense of insanity. The conduct of the defendant while in confinement appears to have been due to a
morbid mental condition produced by remorse.

After a careful study of the record, we are convinced that the appellant is not an imbecile. According to the
evidence, during his marriage of about 16 years, he has not done anything or conducted himself in anyway so as to
warrant an opinion that he was or is an imbecile. He regularly and dutifully cultivated his farm, raised five children,
and supported his family and even maintained in school his children of school age, with the fruits of his work.
Occasionally, as a side line he made copra. And a man who could feel the pangs of jealousy to take violent measure
to the extent of killing his wife whom he suspected of being unfaithful to him, in the belief that in doing so he was
vindicating his honor, could hardly be regarded as an imbecile. Whether or not his suspicions were justified, is of
little or no import. The fact is that he believed her faithless.

But to show that his feeling of jealousy had some color of justification and was not a mere product of hallucination
and aberrations of a disordered mind as that an imbecile or a lunatic, there is evidence to the following effect. In
addition to the observations made by appellant in his written statement Exhibit D, it is said that when he and his wife
first went to live in the house of his half brother, Zacarias Formigones, the latter was living with his grandmother,
and his house was vacant. However, after the family of Abelardo was settled in the house, Zacarias not only
frequented said house but also used to sleep there nights. All this may have aroused and even partly confirmed the
suspicions of Abelardo, at least to his way of thinking.

The appellant has all the sympathies of the Court. He seems to be one of those unfortunate beings, simple, and even
feebleminded, whose faculties have not been fully developed. His action in picking up the body of his wife after she
fell down to the ground, dead, taking her upstairs, laying her on the floor, and lying beside her for hours, shows his
feeling of remorse at having killed his loved one though he thought that she has betrayed him. Although he did not
exactly surrender to the authorities, still he made no effort to flee and compel the police to hunt him down and arrest
him. In his written statement he readily admitted that he killed his wife, and at the trial he made no effort to deny or
repudiate said written statement, thus saving the government all the trouble and expense of catching him, and
insuring his conviction.

Although the deceased was struck in the back, we are not prepared to find that the aggravating circumstance of
treachery attended the commission of the crime. It seems that the prosecution was not intent or proving it. At least
said aggravating circumstance was not alleged in the complaint either in the justice of the peace court or in the Court
of First Instance. We are inclined to give him the benefit of the doubt and we therefore declined to find the existence
of this aggravating circumstance. On the other hand, the fact that the accused is feebleminded warrants the finding in
his favor of the mitigating circumstance provided for in either paragraph 8 or paragraph 9 of article 13 of the
Revised Penal Code, namely that the accused is "suffering some physical defect which thus restricts his means of
action, defense, or communication with his fellow beings," or such illness "as would diminish the exercise of his
will power." To this we may add the mitigating circumstance in paragraph 6 of the same article, — that of having
acted upon an impulse so powerful as naturally to have produced passion or obfuscation. The accused evidently
killed his wife in a fit of jealousy.

With the presence of two mitigating circumstances without any aggravating circumstance to offset them, at first we
thought of the possible applicability of the provisions of article 64, paragraph 5 of the Revised Penal Code for the
purpose of imposing the penalty next lower to that prescribed by article 246 for parricide, which is reclusion
perpetuato death. It will be observed however, that article 64 refers to the application of penalties which contain
three periods whether it be a single divisible penalty or composed of three different penalties, each one of which
forms a period in accordance with the provisions of articles 76 and 77, which is not true in the present case where
the penalty applicable for parricide is composed only of two indivisible penalties. On the other hand, article 63 of
the same Code refers to the application of indivisible penalties whether it be a single divisible penalty, or two
indivisible penalties like that of reclusion perpetua to death. It is therefore clear that article 63 is the one applicable
in the present case.

Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. Interpreting a similar
legal provision the Supreme Court in the case of United States vs. Guevara (10 Phil. 37), involving the crime of
parricide, in applying article 80, paragraph 2 (rule 3 of the old Penal Code) which corresponds to article 63,
paragraph 2 (rule 3 of the present Revised Penal Code), thru Chief Justice Arellano said the following:

And even though the court should take into consideration the presence of two mitigating circumstances of a
qualifying nature, which it can not afford to overlook, without any aggravating one, the penalty could not
be reduced to the next lower to that imposed by law, because, according to a ruling of the court of Spain,
article 80 above-mentioned does not contain a precept similar to that contained in Rule 5 of article 81 (now
Rule 5, art. 64 of the Rev. Penal Code.) (Decision of September 30, 1879.)

Yet, in view of the excessive penalty imposed, the strict application of which is inevitable and which, under
the law, must be sustained, this court now resorts to the discretional power conferred by paragraph 2 of
article 2 of the Penal Code; and.

Therefore, we affirm the judgment appealed from with costs, and hereby order that a proper petition be
filed with the executive branch of the Government in order that the latter, if it be deemed proper in the
exercise of the prerogative vested in it by the sovereign power, may reduce the penalty to that of the next
lower.

Then, in the case of People vs. Castañeda (60 Phil. 604), another parricide case, the Supreme Court in affirming the
judgment of conviction sentencing defendant to reclusion perpetua, said that notwithstanding the numerous
mitigating circumstances found to exist, inasmuch as the penalty for parricide as fixed by article 246 of the Revised
Penal Code is composed of two indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of article 63
of the said Code must be applied. The Court further observed:

We are likewise convinced that appellant did not have that malice nor has exhibited such moral turpitude as
requires life imprisonment, and therefore under the provisions of article 5 of the Revised Penal Code, we
respectfully invite the attention of the Chief Executive to the case with a view to executive clemency after
appellant has served an appreciable amount of confinement.

In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the lower court with
the modification that the appellant will be credited with one-half of any preventive imprisonment he has undergone.
Appellant will pay costs.

Following the attitude adopted and the action taken by this same court in the two cases above cited, and believing
that the appellant is entitled to a lighter penalty, this case should be brought to the attention of the Chief Executive
who, in his discretion may reduce the penalty to that next lower to reclusion perpetua to death or otherwise apply
executive clemency in the manner he sees fit.
 SECOND DIVISION
[G.R. No. 141066. February 17, 2005]
EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
AUSTRIA-MARTINEZ, J.:

Petitioner Evangeline Ladonga seeks a review of the Decision, [1] dated May 17, 1999, of the Court of Appeals
in CA-G.R. CR No. 20443, affirming the Decision dated August 24, 1996, of the Regional Trial Court (RTC), Branch
3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting her of violation of B.P. Blg. 22, otherwise known
as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with the RTC, docketed as
Criminal Case Nos. 7068 - 7070. The Information in Criminal Case No. 7068 alleges as follows:

That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating, and mutually helping with one another,
knowing fully well that they did not have sufficient funds deposited with the United Coconut Planters Bank
(UCPB), Tagbilaran Branch, did then and there willfully, unlawfully, and feloniously, draw and issue UCPB Check
No. 284743 postdated July 7, 1990 in the amount of NINE THOUSAND SEVENTY-FIVE PESOS AND FIFTY-
FIVE CENTAVOS (P9,075.55), payable to Alfredo Oculam, and thereafter, without informing the latter that they
did not have sufficient funds deposited with the bank to cover up the amount of the check, did then and there
willfully, unlawfully and feloniously pass on, indorse, give and deliver the said check to Alfredo Oculam by way of
rediscounting of the aforementioned checks; however, upon presentation of the check to the drawee bank for
encashment, the same was dishonored for the reason that the account of the accused with the United Coconut
Planters Bank, Tagbilaran Branch, had already been closed, to the damage and prejudice of the said Alfredo Oculam
in the aforestated amount.

Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]

The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070 are similarly worded, except
for the allegations concerning the number, date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in the amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June 26, 1991, the two accused pleaded not
guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo Oculam. He testified that: in 1989, spouses
Adronico[6] and Evangeline Ladonga became his regular customers in his pawnshop business in Tagbilaran City,
Bohol;[7] sometime in May 1990, the Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by United
Coconut Planters Bank (UCPB) Check No. 284743, post dated to dated July 7, 1990 issued by Adronico; [8] sometime
in the last week of April 1990 and during the first week of May 1990, the Ladonga spouses obtained an additional
loan of P12,730.00, guaranteed by UCPB Check No. 284744, post dated to dated July 26, 1990 issued by
Adronico;[9]between May and June 1990, the Ladonga spouses obtained a third loan in the amount of P8,496.55,
guaranteed by UCPB Check No. 106136, post dated to July 22, 1990 issued by Adronico;[10] the three checks bounced
upon presentment for the reason CLOSED ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
despite repeated demands, he filed a criminal complaint against them. [12]
While admitting that the checks issued by Adronico bounced because there was no sufficient deposit or the
account was closed, the Ladonga spouses claimed that the checks were issued only to guarantee the obligation, with
an agreement that Oculam should not encash the checks when they mature;[13] and, that petitioner is not a signatory of
the checks and had no participation in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga spouses guilty beyond reasonable
doubt of violating B.P. Blg. 22, the dispositive portion of which reads:

Premises considered, this Court hereby renders judgment finding accused Adronico Ladonga, alias Ronie, and
Evangeline Ladonga guilty beyond reasonable doubt in the aforesaid three (3) criminal cases, for which they stand
charged before this Court, and accordingly, sentences them to imprisonment and fine, as follows:

1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of them, and a fine in the amount
of P9,075.55, equivalent to the amount of UCPB Check No. 284743;

2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1) year and a fine of P12, 730.00,
equivalent to the amount of UCPB Check No. 284744; and,

3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of them and a fine of P8,496.55
equivalent to the amount of UCPB Check No. 106136;

4. That both accused are further ordered to jointly and solidarily pay and reimburse the complainant, Mr. Alfredo
Oculam, the sum of P15,000.00 representing actual expenses incurred in prosecuting the instant cases; P10,000.00
as attorneys fee; and the amount of P30,302.10 which is the total value of the three (3) subject checks which
bounced; but without subsidiary imprisonment in case of insolvency.

With Costs against the accused.

SO ORDERED.[15]

Adronico applied for probation which was granted.[16] On the other hand, petitioner brought the case to the Court
of Appeals, arguing that the RTC erred in finding her criminally liable for conspiring with her husband as the principle
of conspiracy is inapplicable to B.P. Blg. 22 which is a special law; moreover, she is not a signatory of the checks and
had no participation in the issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner. [18] It held that the provisions of the
penal code were made applicable to special penal laws in the decisions of this Court in People vs. Parel, [19] U.S. vs.
Ponte, [20] and U.S. vs. Bruhez.[21] It noted that Article 10 of the Revised Penal Code itself provides that its provisions
shall be supplementary to special laws unless the latter provide the contrary. The Court of Appeals stressed that
since B.P. Blg. 22 does not prohibit the applicability in a suppletory character of the provisions of the Revised Penal
Code (RPC), the principle of conspiracy may be applied to cases involving violations of B.P. Blg. 22. Lastly, it ruled
that the fact that petitioner did not make and issue or sign the checks did not exculpate her from criminal liability as
it is not indispensable that a co-conspirator takes a direct part in every act and knows the part which everyone
performed. The Court of Appeals underscored that in conspiracy the act of one conspirator could be held to be the act
of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals denied the same in a Resolution dated
November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:

1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR ISSUER OF THE THREE
CHECKS THAT BOUNCED BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS ACCOUNT
COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.

2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:

A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS PAMBANSA
BILANG 22 BY INVOKING THE LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
WHICH STATES:

Art. 10. Offenses not subject of the provisions of this Code. Offenses which are or in the future may be punished
under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.

B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF APPEALS IN AFFIRMING
IN TOTO THE CONVICTION OF PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS APPLICABLE.[23]

Petitioner staunchly insists that she cannot be held criminally liable for violation of B.P. Blg. 22 because she had
no participation in the drawing and issuance of the three checks subject of the three criminal cases, a fact proven by
the checks themselves. She contends that the Court of Appeals gravely erred in applying the principle of conspiracy,
as defined under the RPC, to violations of B.P. Blg. 22. She posits that the application of the principle of conspiracy
would enlarge the scope of the statute and include situations not provided for or intended by the lawmakers, such as
penalizing a person, like petitioner, who had no participation in the drawing or issuance of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the declaration of the Court of Appeals
that some provisions of the Revised Penal Code, especially with the addition of the second sentence in Article 10, are
applicable to special laws. It submits that B.P. Blg. 22 does not provide any prohibition regarding the applicability in
a suppletory character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable
under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.

The article is composed of two clauses. The first provides that offenses which in the future are made punishable
under special laws are not subject to the provisions of the RPC, while the second makes the RPC supplementary to
such laws. While it seems that the two clauses are contradictory, a sensible interpretation will show that they can
perfectly be reconciled.
The first clause should be understood to mean only that the special penal laws are controlling with regard to
offenses therein specifically punished. Said clause only restates the elemental rule of statutory construction that special
legal provisions prevail over general ones.[24] Lex specialis derogant generali. In fact, the clause can be considered as
a superfluity, and could have been eliminated altogether. The second clause contains the soul of the article. The main
idea and purpose of the article is embodied in the provision that the "code shall be supplementary" to special laws,
unless the latter should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs. Ponte,[26] and U.S. vs. Bruhez[27] rests
on a firm basis. These cases involved the suppletory application of principles under the then Penal Code to special
laws. People vs. Parel is concerned with the application of Article 22[28] of the Code to violations of Act No. 3030,
the Election Law, with reference to the retroactive effect of penal laws if they favor the accused. U.S. vs.
Ponte involved the application of Article 17[29] of the same Penal Code, with reference to the participation of principals
in the commission of the crime of misappropriation of public funds as defined and penalized by Act No. 1740. U.S.
vs. Bruhezcovered Article 45[30] of the same Code, with reference to the confiscation of the instruments used in
violation of Act No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC. Thus, in the
absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily
applicable, may be applied suppletorily. Indeed, in the recent case of Yu vs. People,[31] the Court applied suppletorily
the provisions on subsidiary imprisonment under Article 39 [32] of the RPC to B.P. Blg. 22.
 The suppletory application of the principle of conspiracy in this case is analogous to the application of the
provision on principals under Article 17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve a
criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of
participation of each of them becomes secondary, since all the conspirators are principals. [33]
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. To be held guilty as a co-principal by reason of
conspiracy, the accused must be shown to have performed an overt act in pursuance or furtherance of the
complicity.[34] The overt act or acts of the accused may consist of active participation in the actual commission of the
crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the
criminal plan.[35]
In the present case, the prosecution failed to prove that petitioner performed any overt act in furtherance of the
alleged conspiracy. As testified to by the lone prosecution witness, complainant Alfredo Oculam, petitioner was
merely present when her husband, Adronico, signed the check subject of Criminal Case No. 7068. [36] With respect to
Criminal Case Nos. 7069-7070, Oculam also did not describe the details of petitioners participation. He did not specify
the nature of petitioners involvement in the commission of the crime, either by a direct act of participation, a direct
inducement of her co-conspirator, or cooperating in the commission of the offense by another act without which it
would not have been accomplished. Apparently, the only semblance of overt act that may be attributed to petitioner is
that she was present when the first check was issued. However, this inference cannot be stretched to mean concurrence
with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. [37] Conspiracy
transcends mere companionship and mere presence at the scene of the crime does not in itself amount to
conspiracy.[38] Even knowledge, acquiescence in or agreement to cooperate, is not enough to constitute one as a party
to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the
common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao:[40]

To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept
that imputes culpability under specific circumstances; as such, it must be established as clearly as any element of the
crime. Evidence to prove it must be positive and convincing, considering that it is a convenient and simplistic device
by which the accused may be ensnared and kept within the penal fold.

Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction must always
be founded on the strength of the prosecutions evidence. The Court ruled thus in People v. Legaspi, from which we
quote:

At most, the prosecution, realizing the weakness of its evidence against accused-appellant Franco, merely relied and
pegged the latters criminal liability on its sweeping theory of conspiracy, which to us, was not attendant in the
commission of the crime.

The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for
the prosecution and not on the weakness of the evidence for the defense. The proof against him must survive the test
of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on
the defense could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it
amounted to a crime. What is required then is moral certainty.

Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable doubt in order to
overcome the constitutional presumption of innocence.

In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the
crime charged. In criminal cases, moral certainty -- not mere possibility -- determines the guilt or the innocence of
the accused. Even when the evidence for the defense is weak, the accused must be acquitted when the prosecution
has not proven guilt with the requisite quantum of proof required in all criminal cases. (Citations omitted)[41]

All told, the prosecution failed to establish the guilt of the petitioner with moral certainty. Its evidence falls short
of the quantum of proof required for conviction. Accordingly, the constitutional presumption of the petitioners
innocence must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May 17, 1999, of the Court of
Appeals in CA-G.R. CR No. 20443 affirming the Decision, dated August 24, 1996, of the Regional Trial Court
(Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting the petitioner of violation of B.P. Blg. 22 is
hereby REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the charges against her
under B.P. Blg. 22 for failure of the prosecution to prove her guilt beyond reasonable doubt. No pronouncement as to
costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN SIMON y SUNGA, respondent.

The Solicitor General for plaintiff-appellee.

Ricardo M.Sampang for accused-appellant.

REGALADO, J.:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4,
Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on
or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a
Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of P40.00, which tea bags, when
subjected to laboratory examination, were found positive for marijuana. 1

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from
Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2 he pleaded not guilty. He voluntarily
waived his right to a pre-trial conference,3 after which trial on the merits ensued and was duly concluded.

The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the
police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa" at Sto.
Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in
the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team,
together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities
and barangay officers thereof. When they reached the place, the confidential informer pointed out appellant to
Lopez who consequently approached appellant and asked him if he had marijuana. Appellant answered in the
affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed
to Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment. Lopez
then scratched his head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed in
on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant. The latter was then brought
by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial
investigation, with Sgt. Pejoro as the investigator.4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the
appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from
appellant.5

Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was stationed farthest
from the rest of the other members, that is, around two hundred meters away from his companions. He did not
actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting appellant after
the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant wherein the latter
was apprised of his rights to remain silent, to information and to counsel. Appellant, however, orally waived his
right to counsel.6

Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant
signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro
likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf
was confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put
"two", instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were
personally and directly involved in the purchase of the marijuana and the arrest of appellant. 7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's
apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also
did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due
to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic
ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant
came back with the same complaint but, except for the gastro-intestinal pain, his physical condition remained
normal.8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at
around 4:30 p.m., he was watching television with the members of his family in their house when three persons,
whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about
something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to
Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a
pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp,
he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt.
Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He denied
knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket
of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro.
He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer endure
the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle,
Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a
quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at Floridablanca,
Pampanga where he was confined for three days.9

Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga
after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering
from peptic ulcer even before the latter's arrest.10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana
Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her
examination revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or
serious external injury, abrasion or contusion on his body. 11

On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant
for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the
penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of
marijuana dried leaves were likewise ordered confiscated in favor of the Government.12
Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his
assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit
"G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the
Dangerous Drugs Act.13

At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant actually
sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated subsequently
from his possession,14 the latter not being in any way connected with the sale, the information alleges that he sold
and delivered four tea bags of marijuana dried leaves.15 In view thereof, the issue presented for resolution in this
appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the
disparate and distinct issue of illegal possession of the other two tea bags which separate offense is not charged
herein.16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 17 To sell
means to give, whether for money or any other material consideration. 18 It must, therefore, be established beyond
doubt that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as
the poseur-buyer, in exchange for two twenty-peso bills.

After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that
appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able
to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried
leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was
amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of
Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and
is more entitled to credence.

We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible
to mistake, harassment, extortion and abuse.19 Nonetheless, such causes for judicial apprehension and doubt do not
obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance
was conducted by the team before the
buy-bust operation was effected.20 No ill motive was or could be attributed to them, aside from the fact that they are
presumed to have regularly performed their official duty. 21 Such lack of dubious motive coupled with the
presumption of regularity in the performance of official duty, as well as the findings of the trial court on the
credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of having been
framed,22 erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he
does not appear to have plausibly done so.

When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-Integrated
National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist
therein,23confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from
appellant were positive for and had a total weight of 3.8 grams of marijuana.24 Thus, the corpus delicti of the crime
had been fully proved with certainty and conclusiveness. 25

Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the
prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags
from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but
in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 26

Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since
such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the
marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution
committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to
a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor
reflects on the witnesses' honesty.27 Besides, there was clearly a mere imprecision of language since Pejoro
obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he
participated in the legalseizure or confiscation thereof as the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered
for finger-printing purposes contrary to the normal procedure in buy-bust operations.28 This omission has been
satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:

Q: Is it the standard operating procedure of your unit that in conducting such

operation you do not anymore provide a powder (sic) on the object so as to
determine the thumbmark or identity of the persons taking hold of the object?

A: We were not able to put powder on these denominations because we are

lacking that kind of material in our office since that item can be purchased only
in Manila and only few are producing that, sir.

xxx xxx xxx

Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as
well as the office of NICA?

A: Our office is only adjacent to those offices but we cannot make a request for
that powder because they, themselves, are using that in their own work, sir. 29

The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes can
under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act punishes
"any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch
in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." 30 The dusting of said
bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification
can be supplied by other species of evidence.

Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the
seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or
booked in the custody of any barangay official or police authorities.31 These are absurd disputations. No law or
jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any
other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having caught
appellant in flagrante delicto, they were not only authorized but were also under the obligation to effect a
warrantless arrest and seizure.

Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his
apprehension. Said Booking Sheet and Arrest Report32 states, inter alia, that "suspect was arrested for selling two
tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana
dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized
property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked
bills from him.33

However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's
conformance to these documents are declarations against interest and tacit admissions of the crime charged. They
were obtained in violation of his right as a person under custodial investigation for the commission of an offense,
there being nothing in the records to show that he was assisted by counsel. 34 Although appellant manifested during
the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the
presence of counsel,35 hence whatever incriminatory admission or confession may be extracted from him, either
verbally or in writing, is not allowable in evidence.36 Besides, the arrest report is self-serving and hearsay and can
easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his
predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The
commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling
transaction37 which happens the moment the buyer receives the drug from the seller. 38 In the present case, and in
light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt.

Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We take this
opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case,
belongs to that class of crimes that may be committed at any time and in any place. 40 It is not contrary to human
experience for a drug pusher to sell to a total stranger, 41 for what matters is not an existing familiarity between the
buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While
there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of
person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can
safely say that those exceptional particulars are not present in this case.

Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which
caused him to escape from Camp Olivas the night he was placed under custody.43 This he asserts to support his
explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and
coercion.

The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only
proceed from the mouth of a credible witness but must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances.44 The evidence on record is bereft of any
support for appellant's allegation of maltreatment. Two doctors, one for the prosecution45 and the other for the
defense,46 testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the
person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had
been suffering even before his arrest.47 His own brother even corroborated that fact, saying that appellant has had a
history of bleeding peptic ulcer.48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not
divulging the same to his brother who went to see him at the camp after his arrest and during his detention
there.49Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the
alleged malefactors despite the opportunity to do so50 and with the legal services of counsel being available to him.
Such omissions funnel down to the conclusion that appellant's story is a pure fabrication.

These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and premeditated
for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or not, appellant's arrest was
only the culmination, the final act needed for his isolation from society and it was providential that it came about
after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have
concluded on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended,
was further amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience necessarily
affects the original disposition of this case and entails additional questions of law which we shall now resolve.

II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect:

Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of

Prohibited Drugs. — The penalty of reclusion perpetua to death and a fine
 ranging from five hundred thousand pesos to ten million pesos shall be imposed
upon any person who, unless authorized by law, shall sell, administer, deliver,
give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions.

xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous
Drugs Act of 1972, is hereby amended to read as follows:

Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds

or Instrument of the Crime. — The penalties for offenses under Sections 3, 4, 7,
8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act
shall be applied if the dangerous drugs involved is in any of the following
quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana

xxx xxx xxx

Otherwise, if the quantity involved is less than the foregoing quantities, the
penalty shall range from prision correccional to reclusion perpetua depending
upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight
of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry
would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to
Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of
the previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled that by force of Article 10 of
said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes
punished by special laws.54 The execution in said article would not apply to those convicted of drug offenses since
habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious
physical injuries, robo, hurto, estafa or falsification.55

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor
invoked in the present case, a corollary question would be whether this court, at the present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has
likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of
penal laws in so far as they are favorable to persons accused of a felony, would be useless and
nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of
whether or not the accused has applied for it, just as would also all provisions relating to the
prescription of the crime and the penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659
has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and
pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief
under a writ of habeas corpus.56

2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the
drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship.

As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty
of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall
unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or
more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.

In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of
its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as
the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been
committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such
conflicting provisions in order to give effect to the whole law,57 we hereby hold that the penalty to be imposed
where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range
from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the
fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused.

3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable
range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall
be taken from said range "depending upon the quantity" of the drug involved in the case. The penalty in said second
paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional,prision
mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the
lightest of them being the minimum, the next as the medium, and the most severe as the maximum period. 58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which
period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific
mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal
transaction.59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20
of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable
penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be
disregarded. Since each component penalty of the total complex penalty will have to be imposed separately as
determined by the quantity of the drug involved, then the modifying circumstances can be used to fix the proper
period of that component penalty, as shall hereafter be explained.

It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon
that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second
paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the
bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof.
Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from
250 to 499 grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is
reclusion perpetua to death.60

Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision
correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved.

4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of
three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question
is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision
correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability
should be taken into account.

We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special
laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be
applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because
the special laws involved provided their own specific penalties for the offenses punished thereunder, and which
penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then
provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose main function is to
determine the period of the penalty in accordance with the rules in Article 64 of the Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of
penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter
were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The
suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be
invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such
supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished under a special
law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and,
necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When,
as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would
consequently be both illogical and absurd to posit otherwise. More on this later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by
Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64
of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance.

5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses
under special laws would be necessary.

Originally, those special laws, just as was the conventional practice in the United States but differently from the
penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty or a range of
penalties with definitive durations, such as imprisonment for one year or for one to five years but without division
into periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time
laws like the Indeterminate Sentence Law61 were passed during the American regime.

Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be
punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance,
Commonwealth Act No. 30362 penalizing non-payment of salaries and wages with the periodicity prescribed therein,
provided:

Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this
Act, shall prima facie be considered a fraud committed by such employer against his employee or
laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen,
paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the
same manner as therein provided.63

Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the penalties
as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act No. 1700
(Anti-Subversion Act) where the penalties ranged from arresto mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to prision
mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may
involve prision mayor, reclusion temporal, reclusion perpetua or death.

Another variant worth mentioning is Republic Act No. 6539

(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not
more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things;
not less than 17 years and 4 months and not more than 30 years, when committed with violence against or
intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant
of the carnapped vehicle is killed.

With respect to the first example, where the penalties under the special law are different from and are without
reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the
application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said
rules for felonies under the Code. In this type of special law, the legislative intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the
penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion
temporal,such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the
other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those
in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and
special laws of the same formulation.

On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised
Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code, have
suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the
fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the
statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application
to said special laws, in the absence of any express or implicit proscription in these special laws. To hold otherwise
would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its
allied legislation, which could never have been the intendment of Congress.

In People vs. Macatanda,65 a prosecution under a special law (Presidential Decree No. 533, otherwise known as the
Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised
Penal Code should not apply to said special law. We said therein that —

We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and
unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of
the classification and duration of penalties as prescribed in the Revised Penal Code, which is not
for penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be
deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large
cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of
the Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . .
(Emphasis supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to
Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement:

. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be
"supplementary" to special laws, this Court held that where the special law expressly grants to the
court discretion in applying the penalty prescribed for the offense, there is no room for the
application of the provisions of the Code . . . .
 The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of
discretion to the Court in the application of the penalty prescribed by the law. In such case, the
court must be guided by the rules prescribed by the Revised Penal Code concerning the
application of penalties which distill the "deep legal thought and centuries of experience in the
administration of criminal laws." (Emphasis ours.) 66

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No.
7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts
of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the
appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different
kinds or classifications of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result
in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of
modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be
considered and applied only if they affect the periods and the degrees of the penalties within rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in
accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of
execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64,
when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be
reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68,
can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should
not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of
Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially
provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when
the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty
next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If
this rule were to be applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees,
which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the
scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the
corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties
reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three
component penalties in the second paragraph of Section 20 shall each be considered as an independent principal
penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the
seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged
from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress.

6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us.
Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put
him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death,
provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. 68 The more
important aspect, however, is how the indeterminate sentence shall be ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the
section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is
without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that
the "offense is punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws
was necessary because of the nature of the former type of penalties under said laws which were not included or
contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range
of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the
illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only
to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is
but an application and is justified under the rule of contemporanea expositio.69

We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects.
In fact, for purposes of determining the maximum of said sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of
the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in
effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the
first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be properly
imposedunder the rules of said Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense." (Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim
that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of
Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof
excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we
have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, 70and
that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment".

What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles
of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical
interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of structural
interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an
integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be
the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in
Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 71

The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in
favor of the accused.72 The "minimum" sentence is merely a period at which, and not before, as a matter of grace
and not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his
confinement.73 It does not constitute the totality of the penalty since thereafter he still has to continue serving the
rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole
may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his
reincarceration may be ordered on legal grounds, even if he has served the minimum sentence.

It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum
sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum
range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the
law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision
correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an
overrated tempest in the judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against
accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he
hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6)
years of prision correccional, as the maximum thereof.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.

Teofilo Mendoza for appellants.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of
Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by direct
participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with
paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day of presidio
mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses
were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for
the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments
of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the
information.

2. Finally, the court erred in not acquitting said defendant from the information upon the ground of
insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin
Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan.
On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that
municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz
(Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of
the peace. On the 20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the
preliminary investigation of the case, the two defendants begged the municipal president of Paombong, Francisco
Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused
binding themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin
Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to
the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a
motion for the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong
dismissed the adultery case commenced against the accused, and cancelled the bonds given by them, with the costs
against the complainant.
The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same municipality of
Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz,
in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves, followed him home to the village
of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana
Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25, 1930, while
Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper,
Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon
being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way
he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him
and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say
anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what
Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura
Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they
heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire
had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms,
while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited there, and carried it to
the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well,
and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age,
coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire
started, and Romana Silvestre leaving it.lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for the
affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore,
proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond a
reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being
married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for
adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition of the accused, who
promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the
municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in
pursuance of their promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality;
that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to
the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of Masocol on November 23,
1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the
same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home
after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge on
the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which
compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without
raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the
court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does
not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in
the commission of the act by another act without which it would not have been accomplished, yet cooperates in the
execution of the act by previous or simultaneous actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her
codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz,
to take away their furniture because he was going to set fire to their house as the only means of revenging himself on
the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence of
conspiracy or cooperation, and her failure to give the alarm when the house was already on fire?
The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice,
encouragement, or agreement, or material, through external acts. In the case of the accused-appellant Romana
Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in
question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does
not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to
give the alarm, that being a subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550,
paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to
meet together, without knowing whether or not such building or house was occupied at the time, or any
freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and
fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in
De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what the
trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not know
whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house, when
the incendiary does not know whether there are people in it at the time, depends upon the danger to which the
inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of another
inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not know
whether there were people or not in the others, inasmuch as the same danger exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the
crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had
alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking
into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8
o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene
of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not
constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime
witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a
barrio, without knowing whether there are people in them or not, sets fire to one known to be vacant at the time,
which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2,
Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the
accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre, who is
hereby acquitted with
one-half of the costs de oficio. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32126 July 6, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO BERRAS, PEDRO BIDES and TERESA
DOMOGMA, accused-appellants.

PER CURIAM:

Appeal from the conviction for the crime of murder and the sentence of life imprisonment, with indemnity to the
offended party, the heirs of the deceased Bernardo Bagabag, in the amount of P12,000, rendered by the Court of
First Instance of Abra in its Criminal Case No. 686, of all the accused the namely, Nemesio Talingdan, Magellan
Tobias, Augusta Berras, Pedro Bides and Teresa Domogma, the last being the supposed wife of the deceased, who,
because no certificate nor any other proof of their marriage could be presented by the prosecution, could not be
charged with parricide.

Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967, he and appellant Teresa Domogma
and their children, arrived together in their house at Sobosob, Salapadan, Abra, some 100 meters distant from the
municipal building of the place. For sometime, however, their relationship had been strained and beset with troubles,
for Teresa had deserted their family home a couple of times and each time Bernardo took time out to look for her.
On two (2) different occasions, appellant Nemesis Talingdan had visited Teresa in their house while Bernardo was
out at work, and during those visits Teresa had made Corazon, their then 12-year old daughter living with them, go
down the house and leave them. Somehow, Bernardo had gotten wind that illicit relationship was going on between
Talingdan and Teresa, and during a quarrel between him and Teresa, he directly charged the latter that should she
get pregnant, the child would not be his. About a month or so before Bernardo was killed, Teresa had again left their
house and did not come back for a period of more than three (3) weeks, and Bernardo came to know later that she
and Talingdan were seen together in the town of Tayum Abra during that time; then on Thursday night, just two (2)
days before he was gunned down, Bernardo and Teresa had a violent quarrel; Bernardo slapped Teresa several
times; the latter went down the house and sought the help of the police, and shortly thereafter, accused Talingdan
came to the vicinity of Bernardo's house and called him to come down; but Bernardo ignored him, for accused
Talingdan was a policeman at the time and was armed, so the latter left the place, but not without warning Bernardo
that someday he would kin him. Between 10:00 and 11:00 o'clock the following Friday morning, Bernardo's
daughter, Corazon, who was then in a creek to wash clothes saw her mother, Teresa, meeting with Talingdan and
their co-appellants Magellan Tobias, Augusto Berras and Pedro Bides in a small hut owned by Bernardo, some 300
to 400 meters away from the latter's house; as she approached them, she heard one of them say "Could he elude a
bullet"; and when accused Teresa Domogma noticed the presence of her daughter, she shoved her away saying "You
tell your father that we will kill him".

Shortly after the sun had set on the following day, a Saturday, June 24, 1967, while the same 12-year old daughter of
Bernardo was cooking food for supper in the kitchen of their house, she saw her mother go down the house through
the stairs and go to the yard where she again met with the other appellants. As they were barely 3-4 meters from the
place where the child was in the "batalan", she heard them conversing in subdued tones, although she could not
discern what they were saying. She was able to recognize all of them through the light coming from the lamp in the
kitchen through the open "batalan" and she knows them well for they are all residents of Sobosob and she used to
see them almost everytime. She noted that the appellants had long guns at the time. Their meeting did not last long,
after about two (2) minutes Teresa came up the house and proceeded to her room, while the other appellants went
under an avocado tree nearby. As supper was then ready, the child caged her parents to eat, Bernardo who was in the
room adjoining the kitchen did not heed his daughter's call to supper but continued working on a plow, while Teresa
also excused herself by saying she would first put her small baby to sleep. So Corazon ate supper alone, and as soon
as she was through she again called her parents to eat. This time, she informed her father about the presence of
persons downstairs, but Bernardo paid no heed to what she said. He proceeded to the kitchen and sat himself on the
floor near the door. Corazon stayed nearby watching him. At that moment, he was suddenly fired upon from below
the stairs of the "batalan". The four accused then climbed the stairs of the "batalan" carrying their long guns and
seeing that Bernardo was still alive, Talingdan and Tobias fired at him again. Bides and Berras did not fire their
guns at that precise time, but when Corazon tried to call for help Bides warned her, saying "You call for help and I
will kill you", so she kept silent. The assailants then fled from the scene, going towards the east.

The first to come to the aid of the family was Corazon's male teacher who lived nearby. Teresa came out of her
"silid" later; she pulled Corazon aside and questioned her, and when Corazon informed her that she recognized the
killers of her father to be her co-appellants herein, she warned her not to reveal the matter to anyone, threatening to
kill her if she ever did so. Still later on, other persons arrived and helped fix and dress the lifeless body of the victim,
Bernardo, autopsy on which was performed in his own house by the Municipal Health Officer of the place on June
26, 1967, about 36 hours after death; burial took place on the same day. The victim's brother who came from Manila
arrived one day after the burial followed by their mother who came from La Paz, Abra where she resides. Corazon,
who had not earlier revealed the Identities of the killers of her father because she was afraid of her own mother, was
somehow able to reveal the circumstances surrounding his killing to these immediate relatives of hers, and the sworn
statement she thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of the information for murder
against the herein five (5) appellants.

On the other hand, according to the evidence for the defense: Teresa prior to her marriage with Bernardo, was a
resident of the town of Manabo, Abra. She has a sister in Manila and two (2) brothers in America who love her
dearly, that is why said brothers of hers had been continuously and regularly sending her monthly $100.00 in checks,
starting from the time she was still single up to the time of her husband's violent death on June 24, 1967, and
thereafter. After their marriage, they moved to and resided in her husband's place in Sallapadan, Abra, bringing with
them three (3) carabaos and two (2) horses, which Bernardo and she used in tilling a parcel of land in said place,
separate and distinct from the parcel of land worked on by Bernardo's parents and their other children. She and
Bernardo lived in their own house which was about 4-5 meters away from the house of her parents-in-law. She
loved Bernardo dearly, they never quarreled, and her husband never maltreated her; although sometimes she had to
talk to Bernardo when he quarrels with his own mother who wanted that Bernardo's earnings be given to her, (the
mother) which Bernardo never did, and at those times, Bernardo would admonish Teresa "You leave me alone". Her
in-laws also hated her because her mother-in-law could not get the earnings of Bernardo for the support of her other
son, Juanito, in his schooling. On his part, Juanito also disliked her because she did not give him any of the
carpentry tools which her brothers in America were sending over to her. She never left their conjugal home for any
long period of time as charged by her mother-in-law, and if she ever did leave the house to go to other places they
were only during those times when she had to go to Bangued to cash her dollar checks with the PNB branch there,
and even on said trips, she was sometimes accompanied by Bernardo, or if she had to go alone and leaves
Sallapadan in the morning, she rode in a weapons carrier along with merchants going to Bangued in the morning and
always rode back with them to Sallapadan in the afternoon of the same day because the weapons carrier is owned by
a resident of Sallapadan who waits for them. Teresa came to know Talingdan only when the latter became a
policeman in Sallapadan, as whenever any of the carabaos and horses they brought from Manabo to Sallapadan got
lost, she and Bernardo would go and report the matter to the Mayor who would then refer the matter to his
policemen, one of whom is Talingdan, so that they may help locate the lost animals; Teresa knew Talingdan well
because they are neighbors, the latter's home being only about 250-300 meters away from theirs. But illicit
relationship had never existed between them.

Early in the evening of June 24, 1967, Teresa was in the kitchen of their house cooking their food for supper. Two of
the children, Corazon and Judit, were with her. Her husband, Bernardo, was then in the adjoining room making a
plow. He had to make the plow at that time of the night because at daytime he worked as a carpenter in the convent.
As soon as the food was ready, she and the children moved over to the adjoining room where Bernardo was to call
him for supper, and he then proceeded to the kitchen to eat. Teresa and the two children were about to follow him to
the kitchen when suddenly they heard more than five (5) or six (6) successive gun shots coming from near their
"batalan". They were all so terrified that they immediately cried for help, albeit she did not know yet at that precise
time that her husband was shot, as she and the children were still in the other room on their way to the kitchen, about
three (3) meters away from Bernardo. But soon Teresa heard her husband crying in pain, and as soon as she reached
him, she took Bernardo into her arms. She did not see the killers of her husband, as the night was then very dark and
it was raining. Bernardo was in her arms when the first group of people who responded to their cry for help arrived.
Among them were the chief of police, some members of the municipal council and appellant Tobias who even
advised Teresa not to carry the lifeless body of Bernardo to avoid abortion as she was then six (6) months pregnant.
The chief of police then conducted an investigation of the surroundings and he found some empty shells and foot
prints on the ground some meters away from the "batalan". He also found some bullet holes on the southern walls of
said "batalan" and on the nothern wallings of the kitchen. Later, Teresa requested some persons to relay the
information about the death of her husband to her relatives in Manabo, Abra, and they in turn passed on the news to
Bernardo's mother and her family in La Paz, Abra, where they were then residing, as they have left their house in
Sallapadan about two (2) months previous after they lost the land they used to till there in a case with the natives
called Tingians. Two (2) PC soldiers arrived in the afternoon of June 26, 1967, and after Bernardo's remains was
autopsied and he was buried under their house, they conducted an investigation, but she did not give them any
information relative to the Identity of the persons who shot her husband because she did not really see them. Her
mother-in-law and a brother-in-law, Juanita Bagabag, arrived later, the former from the town of La Paz, Abra, and
the latter from Manila, and after the usual nine (9) days mourning was over, they left Sallapadan, taking Teresa's
children under their custody. Teresa suspects that since her mother-in-law and her brother-in-law have axes to grind
against her and they have her daughter, Corazon, under their custody, they had forced the said child to testify against
her. She further declared that her late husband, Bernardo, had enemies during his lifetime, as he had quarrels with
some people over the land they work on.

Furthermore, the defense presented evidence to the effect that: Talingdan was not in Sallapadan at the time of the
killing of Bernardo on June 24, 1967; being a policeman of the place at the time, he was one of the two (2)
policemen who escorted and acted as bodyguard of the Mayor, when the latter attended the cursillo in Bangued, all
of them leaving Sallapadan on June 22 and returning thereto four (4) days later on June 26, hence, he could not have
anything to do with the said killing. On the other hand, Tobias claimed to be in the house of one Mrs. Bayongan in
Sallapadan on the date of said killing, but he was one of the persons who was called upon by the chief of police of
the place to accompany him in answer to the call for help of the wife of the victim. The other two appellants Bides
and Berras also alleged that they were in the same house of Mrs. Bayongan on that date; they are tillers of the land
of said Mrs. Bayongan and had been staying in her house for a long time. They were sleeping when the chief of
police came that evening and asked Tobias, who was then municipal secretary, to accompany him to the place of the
shooting. They did not join them, but continued sleeping. They never left the said house of Mrs. Bayongan, which is
about 250-300 meters away from the place of the killing, that evening of June 24, 1967.

After carefully weighing the foregoing conflicting evidence of the prosecution and defense, We have no doubt in
Our mind that in that fatal evening of June 24, 1967, appellants Nemesio Talingdan, Magellan Tobias, Augusto
Berras and Pedro Bides, all armed with long firearms and acting inconspiracy with each other gunned down
Bernardo as the latter was sitting by the supper table in their house at Sobosob, Sallapadan, Abra. They were
actually seen committing the offense by the witness Corazon. She was the one who prepared the food and was
watching her father nearby. They were all known to her, for they were all residents of Sobosob and she used to see
them often before that night. Although only Talingdan and Tobias continued firing at her father after they had
climbed the stairs of the "batalan", it was Bides who threatened her that he would kill her if she called for help.
Berras did not fire any shot then. But even before the four appellants went up the "batalan", they already fired shots
from downstairs.

We also fully believe Corazon's testimony that two nights before, or on Thursday, June 22, 1967, the deceased
Bernardo and appellant Teresa had a violent quarrel during which he slapped her several times. She went to seek the
help of the police, and it was appellant Talingdan, a policeman of their town, who went to the vicinity of their house
and challenged her father to come down, but the latter refused because the former was a policeman and was armed.
And so, Talingdan left after shouting to her father that "If I will find you someday, I will kill you."

We likewise accept as truthful, Corazon's declaration regarding the amorous relationship between her mother and
appellant Talingdan, as already related earlier above. So also her testimony that in the morning following the quarrel
between her father and her mother and the threat made by Talingdan to the former, between 10:00 and 11:00
o'clock, she saw all the herein four male accused-appellants meeting with her mother in a small hut some 300 or 400
meters away from their house, near where she was then washing clothes, and that on said occasion she overheard
one of them ask "Could (sic) he elude a bullet?", We have our doubts, however, as to whether or not her mother did
say to her in shoving her away upon seeing her approach, "You tell your father we will kill him." If it were true that
there was really such a message, it is to be wondered why she never relayed the same to her father, specially when
she again saw the said appellants on the very night in question shortly before the shooting talking together in
subdued tones with her mother and holding long arms. Moreover, it is quite unnatural that such a warning could
have been done in such a manner.

Accordingly, it is Our conclusion from the evidence related above and which We have carefully reviewed that
appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides are guilty of murder qualified by
treachery, as charged, and that they committed the said offense in conspiracy with each other, with evident
premeditation and in the dwelling of the offended party. In other words, two aggravating circumstances attended the
commission of the offense, namely, evident premeditation and that it was committed in the dwelling of the victim.
No mitigating circumstance has been proven.

Appellants insist in their brief that the lone testimony of Corazon suffered from vital contradictions and
inconsistencies and badges of falsehood because of patently unnatural circumstances alleged by her. We do not
agree. As the Solicitor General has well pointed out, the fact that the witness varied on cross-examination the exact
time of some of the occurrences she witnessed, such as, (1) whether it was before or after Bernardo had began eating
when he was shot; (2) whether it was before or after seeing her mother's meeting with her co-accused in the morning
of Friday, June 23, 1967, that she went to wash clothes; and (3) whether or not the accused were already upstairs or
still downstairs when they first fired their guns, cannot alter the veracity of her having seen appellants in the act of
mercilessly and cold-bloodedly shooting her father to death.

Contrary to the contention of appellants, there was nothing inherently unnatural in the circumstances related by her.
We agree with the following rebuttal of the Solicitor General:

Appellants also attempt to buttress their attack against the credibility of Corazon Bagabag by
pointing out five supposed unnatural declarations in her testimony; First, she said that her father,
appeared unconcerned when she informed him of the presence of people downstairs. But as
correctly observed by the prosecuting fiscal the witness does not know then "the mentality of her
father" (p. 62, t.s.n., hearing of March 29, 1968). Second, Corazon also declared that the accused
conversed that Saturday night preceding the day the crime charged was committed in a lighted
place although there was a place which was unlighted in the same premises. But this only proves
that the accused were too engrossed in their conversation, unmindful of whether the place where
they were talking was lighted or not, and unmindful even of the risk of recognition. Third, witness
declared that Pedro Bides and Augusto Berras did not fire their guns. Even if these accused did
withhold their fire, however, since they were privies to the same criminal design, would this alter
their culpability? Should the witness Corazon Bagabag be discredited for merely stating an
observation on her part which is not inherently unnatural? Fourth, Corazon also declared that only
three bullets from the guns of the four male accused found their mark on the body of her father.
But would this not merely prove that not all the accused were good shots? And fifth, the witness
declared that her father was still able to talk after he was shot yet Dr. Jose Dalisan declared that his
death was instantaneous It is respectfully submitted, however, that the doctor's opinion could yield
to the positive testimony of Corazon Bagabag in this regard without in the least affecting the
findings of said doctor as regards the cause of the death of the deceased. As thus viewed, there are
no evident badges of falsehood in the whole breadth and length of Corazon Bagabag's testimony.
(Pp. 9-10, People's Brief.)

Why and how Corazon could have concocted her version of the killing of her father, if it were not basically true, is
hardly conceivable, considering she was hardly thirteen (13) years old when she testified, an age when according to
Moore, a child , is, as a rule, but little influenced by the suggestion of others" because "he has already got some
principles, lying is distasteful to him, because he thinks it is mean, he is no stranger to the sentiment of self- respect,
and he never loses an opportunity of being right in what he affirms." (II Moore on Facts, pp. 1055-1056.) No cogent
explanation has been offered why she would attribute the assault on her father to three other men, aside from
Talingdan whom she knew had relations with her mother, were she merely making-up her account of how he was
shot, no motive for her to do so having been shown.

Demolishing the theory of the accused that such testimony was taught to her by her uncle, His Honor pointed out
that said "testimony, both direct and cross, would show that she was constant, firm and steady in her answers to
questions directed to her." We have Ourselves read said testimony and We are convinced of the sincerity and
truthfulness of the witness. We cannot, therefore, share appellants' apprehension in their Seventh Assignment of
Error that the grave imputation of a mother's infidelity and her suggested participation in the killing of her husband,
would if consistently impressed in the mind of their child, constitute a vicious poison enough to make the child, right
or wrong, a willing instrument in any scheme to get even with her wicked mother. We feel Corazon was too young
to he affected by the infidelity of her mother in the manner the defense suggests. We are convinced from a reading
of her whole testimony that it could not have been a fabrication. On the whole, it is too consistent for a child of
thirteen years to be able to substantially maintain throughout her stay on the witness stand without any fatal flaw, in
the face of severe and long cross-interrogations, if she had not actually witnessed the event she had described. We
reject the possibility of her having been "brainwashed or coached" to testify as she did.

The second to the sixth assignments of error in the appeal brief do not merit serious consideration. Anent these
alleged errors, suffice it to say that the following refutations of the Solicitor General are well taken:

Appellants also decry that the trial court allegedly failed to consider the testimony of Dr. Dalisan
that the distance between the assailants and the deceased could have been 4 to 5 meters when the
shots were fired. But the appellants overlook the testimony of Corazon Bagabag that when the first
shot was fired, the gunman was about 3-½ meters from her father (p. 60, t.s.n., hearing of March
29, 1968), which disproves the theory of the defense that the killers fired from a stonepile under
an avocado tree some 4 to 5 meters away from the deceased's house. Appellants also insist that the
Court a quo ignored the testimonies of defense witness Cpl. Bonifacio Hall and Chief of Police
Rafael Berras on their having found bullet marks on the southern walling of the house of the
deceased, as well as empty cal. 30 carbine shells under the aforementioned avocado tree. The trial
court, however, made the following apt observations on the testimony of defense witness Cpl.
Bonifacio Hall:

This witness stated that we went to the house of the deceased to investigate the crime after the
deceased had already been buried; that he investigated the widow as well as the surroundings of
the house where the deceased was shot. He found empty shells of carbine under the avocado tree.
He stated that the 'batalan' of the house of the deceased has a siding of about 1-½ meters high and
that he saw bullet holes on the top portion of the wall directly pointing to the open door of the
'batalan' of the house of the deceased. When the court asked the witness what could have been the
position of the assailant in shooting the deceased, he stated that the assailant might have been
standing. The assailant could not have made a bullet hole on the top portion of the sidings of the
'batalan' because the 'batalan' is only 1-½ meters high, and further, when asked as to the level of
the ground in relation to the top sidings of the 'batalan,' he answered that it is in the same level
with the ground. If this is true, it is impossible for the assailant to make a bullet hole at the top
portion sidings of the 'batalan,' hence, the testimony of this witness who is a PC corporal is of no
consequence and without merit. The court is puzzled to find a PC corporal testifying for the
defense in this case, which case was filed by another PC sergeant belonging to the same unit and
assigned in the same province of Abra (pp. 324- 325, rec.).

As regards the empty shells also found in the vicinity of the shooting, suffice it to state that no
testimony has been presented, expert or otherwise, linking said shells to the bullets that were fired
during the shooting incident. Surmises in this respect surely would not overcome the positive
testimony of Corazon Bagabag that the accused shot her father as they came up the 'batalan' of
their house. (Pp. 11-12, People's Brief.)
At the trial, the four male appellants tried to prove that they were not at the scene of the crime when it happened.
This defense of alibi was duly considered by the trial court, but it was properly brushed aside as untenable. In their
brief, no mention thereof is made, which goes to show that in the mind of the defense itself,. it cannot be
successfully maintained and they do not, therefore, insist on it. Nonetheless, it would do well for this Court to
specifically affirm the apt pertinent ratiocination of His Honor in reference thereto thus:

This defense, therefore, is alibi which, in the opinion of the court, can not stand firmly in the face
of a positive and unwavering testimony of the prosecution witness who pointed out to the accused
as the authors of the crime. This is so because, first, according to the three accused — Bides,
Tobias and Berras — they were sleeping at 8:00 o'clock that night in the house of Mrs. Bayongan
which is only 250 meters away from the scene of the crime. Granting, for the sake of argument,
but without admitting, that they were already sleeping at 8:00 o'clock in the house of Mrs.
Bayongan, Corazon Bagabag clearly stated that her father was gunned down at sunset which is
approximately between 6:00 and 6:30 in the evening, hence, the accused Tobias, Berras and Bides
could have committed the crime and went home to sleep in the house of Mrs. Bayongan after the
commission of the crime. According to Pedro Bides, the house of Mrs. Bayongan is only 250
meters away from the house of the victim. Second, the three accused have failed miserably to
present the testimony of Mrs. Bayongan, the owner of the house where they slept that night to
corroborate or bolster their defense of alibi. (Pp. 27A-28A, Annex of Appellants' Brief.)

xxx xxx xxx

Nemesio Talingdan, alias Oming, the last of the accused, also in his defense of alibi, stated that on
June 22, 1967, he accompanied Mayor Gregorio Banawa of Sallapadan to Bangued, together with
policeman Cresencio Martinez for the purpose of attending a cursillo in Bangued They started in
Sallapadan in the early morning of June 22, 1967 and arrived in Bangued the same day. According
to him, he went to accompany the mayor to the cursillo house near the Bangued Cathedral and
after conducting the mayor to the cursillo house, he went to board in the house of the cousin of
Mayor Banawa near the Filoil Station at Bangued, Abra. From that time, he never saw the mayor
until after they went home to Sallapadan on June 26th.

This kind of alibi could not gain much weight because he could have returned anytime on the
evening of June 22 or anytime before the commission of the offense to Sallapadan and commit the
crime on the 24th at sunset, then returned to Bangued, Abra to fetch the mayor and bring him back
to Sallapadan on the 26th.

The irony of this defense of alibi is that the mayor who was alleged to have been accompanied by
witness-accused is still living and very much alive. As a matter of fact, Mayor Gregorio Banawa is
still the mayor of Sallapadan, Abra, and also policeman Cresencio Martinez, another policeman
who accompanied the mayor to Bangued, is also still living and still a policeman of Sallapadan.
Why were not the mayor and the policeman presented to corroborate or deny the testimony of
Nemesio Talingdan?

Conrado B. Venus, Municipal Judge of Penarrubia Abra, and a member of the Cursillo Movement,
was presented as rebuttal witness for the prosecution. On the witness stand, he stated that he
belongs to Cursillo No. 3 of the Parish of Bangued, Abra, and said cursillo was held on October 20
to 23, 1966, at the St. Joseph Seminary in Galicia, Pidigan Abra, and not on June 23 to 26, 1967.
As a matter of fact, Mayor Banawa of Sallapadan also attended the cursillo held on October 20 to
23, 1966, as could be seen in his 'Guide Book' where the signature of Gregorio Banawa appears
because they both attended Cursillo No. 3 of the Parish of Bangued.

(To) this testimony of the rebuttal witness belies partly, if not in full, the testimony of accused
Nemesio Talingdan. (Pp. 29A-30A, Annex of Appellants' Brief.)
Coming now to the particular case of appellant Teresa Domogma, as to whom the Solicitor General has submitted a
recommendation of acquittal, We find that she is not as wholly innocent in law as she appears to the Counsel of the
People. It is contended that there is no evidence proving that she actually joined in the conspiracy to kill her husband
because there is no showing of 'actual cooperation" on her part with her co-appellants in their culpable acts that led
to his death. If at all, what is apparent, it is claimed, is "mere cognizance, acquiescence or approval" thereof on her
part, which it is argued is less than what is required for her conviction as a conspirator per People vs. Mahlon, 99
Phil. 1068. We do not see it exactly that way.

True it is that the proof of her direct participation in the conspiracy is not beyond reasonable doubt, for which
reason, sue cannot have the same liability as her co-appellants. Indeed, she had no hand at all in the actual shooting
of her husband. Neither is it clear that she helped directly in the planning and preparation thereof, albeit We are
convinced that she knew it was going to be done and did not object. (U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is
not definitely shown that she masterminded it either by herself alone or together with her co-appellant Talingdan. At
best, such conclusion could be plain surmise, suspicion and conjecture, not really includible. After all, she had been
having her own unworthy ways with him for quite a long time, seemingly without any need of his complete
elimination. Why go to so much trouble for something she was already enjoying, and not even very surreptitiously?
In fact, the only remark Bernardo had occasion to make to Teresa one time was "If you become pregnant, the one in
your womb is not my child." The worst he did to her for all her faults was just to slap her.

But this is not saying that she is entirely free from criminal liability. There is in the record morally convincing proof
that she is at the very least an accessory to the offense committed by her co-accused. She was inside the room when
her husband was shot. As she came out after the shooting, she inquired from Corazon if she was able to recognize
the assailants of her father. When Corazon Identified appellants Talingdan, Tobias, Berras and Bides as the culprits,
Teresa did not only enjoin her daughter not to reveal what she knew to anyone, she went to the extent of warning
her, "Don't tell it to anyone. I will kill you if you tell this to somebody." Later, when the peace officers who repaired
to their house to investigate what happened, instead of helping them with the information given to her by Corazon,
she claimed she had no suspects in mind. In other words, whereas, before the actual shooting of her husband, she
was more or less passive in her attitude regarding her co-appellants' conspiracy, known to her, to do away with him,
after Bernardo was killed, she became active in her cooperation with them. These subsequent acts of her constitute
"concealing or assisting in the escape of the principal in the crime" which makes her liable as an accessory after the
fact under paragraph 3 of Article 19 of the Revised Penal Code.

As already indicated earlier, the offense committed by appellants was murder qualified by treachery. It being
obvious that appellants deliberately chose nighttime to suddenly and without warning assault their victim, taking
advantage of their number and arms, it is manifest that they employed treachery to insure success in attaining their
malevolent objective. In addition, it is indisputable that appellants acted with evident premeditation. Talingdan made
the threat to kill Bernardo Thursday night, then he met with his co-accused to work out their conspiracy Friday and
again on Saturday evening just before the actual shooting. In other words, they had motive Talingdan's taking up the
cudgels for his paramour, Teresa and enough time to meditate, and desist, if they were not resolved to proceed with
their objective. Finally, they committed the offense in the dwelling of the offended party.

In these premises, the crime committed by the male appellants being murder, qualified by treachery, and attended by
the generic aggravating circumstances of evident premeditation and that the offense was committed in the dwelling
of the offended party, the Court has no alternative under the law but to impose upon them the capital penalty.
However, as to appellant Teresa, she is hereby found guilty only as an accessory to the same murder.

WHEREFORE, with the above finding of guilt beyond reasonable doubt of the appellants Nemesio Talingdan,
Magellan Tobias, Augusto Berras and Pedro Bides of the crime of murder with two aggravating circumstances,
without any mitigating circumstance to offset them, they are each hereby sentenced to DEATH to be executed in
accordance with law. Guilty beyond reasonable doubt as accessory to the same murder, appellant Teresa Domogma
is hereby sentenced to suffer the indeterminate penalty of five (5) years of prision correccional as minimum to eight
(8) years of prision mayor as maximum, with the accessory penalties of the law. In all other respects, the judgment
of the trial court is affirmed, with costs against appellants.
 SECOND DIVISION

EDUARDO P. MANUEL, G.R. No. 165842

Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005

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

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No.

26877, affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P.

Manuel of bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which

reads:

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being
then previously and legally married to RUBYLUS [GAA] and without the said marriage having
been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second
marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the
existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa].

CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano

Santos in Makati, which was then still a municipality of the Province of Rizal. [4] He met the private complainant Tina

B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking
for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo

went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tinas

resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring
her that he was single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and was assured by

them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April

22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in
their marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life. Through their joint efforts, they were

able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself

scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from

Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse,

he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO)

in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the

marriage contract.[7] She was so embarrassed and humiliated when she learned that Eduardo was in fact already

married when they exchanged their own vows.[8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations

Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa,

but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed

that she had a love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was single

in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not

know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit

suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail
after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no

longer valid because he had not heard from Rubylus for more than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy.

He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10)
years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by

way of moral damages, plus costs of suit.[9]

The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under

Article 349 of the Revised Penal Code. It declared that Eduardos belief, that his first marriage had been dissolved
because of his first wifes 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the

ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known

that Eduardo had been previously married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because

when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that

at the time that he married the private complainant, he was of the honest belief that his first marriage no longer

subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be

criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so

only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into

account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United

States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardos defense of good faith and reliance on the

Courts ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the Family Code,

which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,[14]the OSG further

posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive

death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the

parties thereto should not be permitted to judge for themselves the nullity of the marriage;

the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private
complainants knowledge of the first marriage would not afford any relief since bigamy is an offense against the State

and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and

sought the affirmance of the decision appealed from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty

of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention

of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private

complainant, there should have been a judicial declaration of Gaas presumptive death as the absent spouse. The
appellate court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its

ruling. The dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is
hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an
indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all
other respects.

SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that:

I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED
THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER
ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF
PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT
AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS
IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage

has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead

under the Civil Code. He avers that when he married Gandalera in 1996, Gaa had been absent for 21 years since 1975;

under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first

paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still

alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on

legal presumption of death with respect to succession.

The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the

satisfaction of two requirements: the

specified period and the present spouses reasonable belief that the absentee is dead. He insists that he was able to
prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether

she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa had arisen by operation

of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should
thus be acquitted of the crime of bigamy.
 The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the

rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it
require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He

further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of

presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or
second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private
complainant. The private complainant was a GRO before he married her, and even knew that he was already married.

He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit

relationship with a lover whom she brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioners conviction is

in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this

Court in Republic v. Nolasco.[19]

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by means of a judgment rendered in
the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente disuelto el anterior, ser
castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by

law.[20] The phrase or before the absent spouse had been declared presumptively dead by means of a judgment rendered
in the proper proceedings was incorporated in the Revised Penal Code because the drafters of the law were of the

impression that in consonance with the civil law which provides for the presumption of death after an absence of a

number of years, the judicial declaration of presumed death like annulment of marriage should be a justification
for bigamy.[21]
For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been

legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully
dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage. [22]It is

essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would

be valid were it not for the subsistence of the first marriage.[23] Viada avers that a third element of the crime is that the
second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of

a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1)

the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does

not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully

dissolved by a court of competent jurisdiction.[25] As the Court ruled in Domingo v. Court of Appeals[26] and Mercado

v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a

defense.

In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there

are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention

constituting the felony of the act.[28] He explained that:

This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle
antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is
no willfulness there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be supported by very strong
evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person
who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead,
because of the many years that have elapsed since he has had any news of her whereabouts, in spite
of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no
fraudulent intent which is one of the essential elements of the crime. [29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article

3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent.

Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed
voluntary.[30] Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is

included in the word voluntary.[31]

Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification
from which another suffers injury.[32] When the act or omission defined by law as a felony is proved to have been done

or committed by the accused, the law presumes it to have been intentional. [33] Indeed, it is a legal presumption of law
that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary,

and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence. [34]

For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil

intent. Actus non facit reum, nisi mens sit rea.[35]

In the present case, the prosecution proved that the petitioner was married to Gaa in 1975, and such marriage was not

judicially declared a nullity; hence, the marriage is presumed to subsist. [36] The prosecution also proved that the

petitioner married the private complainant in 1996, long after the effectivity of the Family Code.

The petitioner is presumed to have acted with malice or evil intent when he married the private complainant.

As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo;

such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is

presumed to know the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996,

he was of the well-grounded belief

that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have

adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by

Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also

constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married

the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner,

however, failed to discharge his burden.

The phrase or before the absent spouse has been declared presumptively dead by means of a judgment
rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless

words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse

present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be
charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the

Constitution, the State shall protect and strengthen the family as a basic autonomous social institution. Marriage is a

social institution of the highest importance. Public policy, good morals and the interest of society require that the

marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the
causes specified by law.[37] The laws regulating civil marriages are necessary to serve the interest, safety, good order,

comfort or general welfare of the community and the parties can waive nothing essential to the validity of the
proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it

enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State.

On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and

death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that
the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first

spouse or of the presumptive death of the absent spouse[38] after the lapse of the period provided for under the law.

One such means is the requirement of the declaration by a competent court of the presumptive death of an absent

spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the

first spouse. Indeed, men readily believe what they wish to be true, is a maxim of the old jurists. To sustain a second

marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the

marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by

the subjective condition of individuals.[39] Only with such proof can marriage be treated as so dissolved as to permit

second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not

only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial

cognizance,[41] namely, a judgment of the presumptive death of the absent spouse.

The petitioners sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is

misplaced.

Articles 390 and 391 of the Civil Code provide

Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives,
he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for
four years;
 (3) A person who has been in danger of death under other circumstances and his
existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven years, it being unknown whether or

not the absentee still lives, is created by law and arises without any necessity of judicial declaration. [42] However,

Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Court for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.[43]

With the effectivity of the Family Code,[44] the period of seven years under the first paragraph of Article 390

of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent

marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee

spouse,[45] without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court

in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage
may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior
spouse of the contracting party must have been absent for four consecutive years, or two years where
there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time
of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already
dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee
for which purpose the spouse present can institute a summary proceeding in court to ask for that
declaration. The last condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the
Family Code.

The Court rejects petitioners contention that the requirement of instituting a petition for declaration of

presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a
valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize

civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court

and comments of eminent authorities on Criminal Law.

 As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage law,

it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a
subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code

has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For

the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven
consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse

to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of

the celebration of the marriage.[48] In In Re Szatraw,[49] the Court declared that a judicial declaration that a person is

presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only,

subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person

presumed dead being unheard from in seven years, would have to be made in another proceeding to have such

particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead

because he or she had not been heard from in seven years cannot become final and executory even after the lapse of

the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains

subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit

to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and

meaningless act.[50] The Court also took note that a petition for a declaration of the presumptive death of an absent

spouse may even be made in collusion with the other spouse.

In Lukban v. Republic of the Philippines,[51] the Court declared that the words proper proceedings in Article

349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil

Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the

Philippines,[52] the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the
courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated

its rulings in Szatraw, Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that the provision of Article 349 or before the absent
spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings is erroneous

and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not

been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court

proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true. [53] A second marriage

is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not

present.[54] Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial
decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith

will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give
rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse

who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted

of bigamy in case he/she contracts a second marriage.[56]

The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the

Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the
requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the

presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have

to adduce evidence that he had a well-founded belief that the absent spouse was already dead. [57] Such judgment is

proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse

is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by

former Justice Alicia Sempio-Diy:

Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present
spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be
guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the
present spouse contracting a second marriage, he or she must file a summary proceeding as provided
in the Code for the declaration of the presumptive death of the absentee, without prejudice to the
latters reappearance. This provision is intended to protect the present spouse from a criminal
prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial
declaration that the missing spouses presumptively dead, the good faith of the present spouse in
contracting a second marriage is already established.[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things

are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of
remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the

absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible

clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring
an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the clause before the absent spouse has

been declared presumptively dead x x x should be disregarded because of Article 83, paragraph 3 of the Civil Code.
With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of

the absentee, otherwise, there is bigamy.[59]

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some
cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death,

which could then be made only in the proceedings for the settlement of his estate. [60] Before such declaration, it was

held that the remarriage of the other spouse is bigamous even if done in good faith. [61] Justice Regalado opined that
there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which,

however, appears to have been set to rest by Article 41 of the Family Code, which requires a summary hearing for the

declaration of presumptive death of the absent spouse before the other spouse can remarry.

Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent

spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.[62]

On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of

the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases

provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate

court failed to apply its ruling in People v. Bondoc,[63] where an award of moral damages for bigamy was disallowed.

In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private complainant on its finding that she adduced

evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in

Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate

court ruled that it is not bound by the following ruling in People v. Bondoc:

... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente porque el articulo
2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de daos morales en los delitos de estupro,
rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeracin el
delito de bigamia. No existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00
arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG,

likewise, avers that the CA was not bound by its ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,

wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation,

moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. [65] An
award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether

physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission
factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained

by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article

2220 of the Civil Code.[66]

Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article

2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this
article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action
mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered

mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and

similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the

inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or

resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.) [68]

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the

offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner
is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the

Civil Code.

According to Article 19, every person must, in the exercise of his rights and in the performance of his act
with justice, give everyone his due, and observe honesty and good faith. This provision contains what is commonly

referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise
of ones rights but also in the performance of ones duties. The standards are the following: act with justice; give

everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right
or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another. [69]

Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for
its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said

provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be

responsible.[70] If the provision does not provide a remedy for its violation, an action for damages under either Article
20 or Article 21 of the Civil Code would be proper. Article 20 provides that every person who, contrary to law,

willfully or negligently causes damage to another shall indemnify the latter for the same. On the other hand, Article

21 provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good

customs or public policy shall compensate the latter for damages. The latter provision

is adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even

though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold

number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes. Whether

or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil

Code or other applicable provisions of law depends upon the circumstances of each case.[71]

In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he

was single. He even brought his parents to the house of the private complainant where he and his parents made the

same assurance that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in

the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his

wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly

abandoned her, the private complainant had no inkling that he was already married to another before they were
married.

Thus, the private complainant was an innocent victim of the petitioners chicanery and heartless deception,
the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance

of being a lawful husband to the private complainant, who

changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single
man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned

out was not her lawful husband.[72]

 The Court rules that the petitioners collective acts of fraud and deceit before, during and after his marriage

with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not
sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,[73] the New

Jersey Supreme Court ruled:

xxx The defendant cites authorities which indicate that, absent physical injuries, damages
for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent.
See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize
that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural,
and proximate consequences though they consist of shame, humiliation, and mental anguish. See
Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery
Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at
p. 38. Here the defendants conduct was not merely negligent, but was willfully and maliciously
wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and
when such result did ensue the plaintiff became entitled not only to compensatory but also to
punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc.,
Local 24, supra. CF. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957).
The plaintiff testified that because of the defendants bigamous marriage to her and the attendant
publicity she not only was embarrassed and ashamed to go out but couldnt sleep but couldnt eat,
had terrific headaches and lost quite a lot of weight. No just basis appears for judicial interference
with the jurys reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v.
Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div. [74]1955).

The Court thus declares that the petitioners acts are against public policy as they undermine and subvert the family as

a social institution, good morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the petitioners perfidy, she is not barred from

claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held

in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of another to do an act which, in

consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is
in fact a criminal offense, he has a right of action against the person so inducing him for damages
sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B.
816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a
false representation by the defendant that he was divorced from his former wife, whereby the
plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been
assumed that the fact that she had unintentionally violated the law or innocently committed a crime
by cohabiting with him would be no bar to the action, but rather that it might be a ground for
enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to
give the fellowship and assistance of a wife to one who was not her husband and to assume and act
in a relation and condition that proved to be false and ignominious. Damages for such an injury were
held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339,
343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression
of the law by herself but upon the defendants misrepresentation. The criminal relations which
 followed, innocently on her part, were but one of the incidental results of the defendants fraud for
which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation
have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17
L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y.
434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of
public policy would not prevent recovery where the circumstances are such that the plaintiff was
conscious of no moral turpitude, that her illegal action was induced solely by the defendants
misrepresentation, and that she does not base her cause of action upon any transgression of the law
by herself. Such considerations
distinguish this case from cases in which the court has refused to lend its aid to the enforcement of
a contract illegal on its face or to one who has consciously and voluntarily become a party to an
illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154
N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to

be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of

Appeals is AFFIRMED. Costs against the petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-
appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

REGALADO, J.:

The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for
ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential
Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and
found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal
Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as
Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in
the following manner:

That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the said accused, being then private individuals, conspiring
together, confederating with and mutually helping each other, did, then and there, wilfully,
unlawfully and feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y
MUTUC * for the purpose of extorting ransom, to the damage and prejudice of the said offended
party in such amount as may be awarded to her under the provisions of the Civil Code. 1

On a plea of not guilty when arraigned,2 appellants went to trial which ultimately resulted in a judgment
promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway,
punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and
ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed on a highway
and, in accordance with P.D. 532, they are both sentenced to a jail term of reclusion perpetua.
 The two accused are likewise ordered to pay jointly and severally the offended private victim Ma.
Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate
damages.3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential
Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule
120 of the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly
be used as the offense proved which is necessarily included in the offense charged. 4

For the material antecedents of this case, we quote with approval the following counter-statement of facts in the
People's brief5 which adopted the established findings of the court a quo, documenting the same with page
references to the transcripts of the proceedings, and which we note are without any substantial divergence in the
version proffered by the defense.

This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two
accused (tsn, Jan. 8, 1990, p. 7).

Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called
Nika Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6).

At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the
personal driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account
of local election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had
to go to Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic)
take his place (Id., pp. 8-9).

Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes
Benz of her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of
Araneta Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the
driver (Id., pp. 9-10).

Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma.
Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to
get money from you." She said she has money inside her bag and they may get it just so they will
let her go. The bag contained P7,000.00 and was taken (Id., pp. 11-14).

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that
but would they drop her at her gas station in Kamagong St., Makati where the money is? The car
went about the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed.
Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said
he is an NPA and threatened her (Id., p.15).

The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called,
asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks
in denominations of two for P30 thousand and one for P40 thousand. Enrique ordered her to
swallow a pill but she refused (Id., pp. 17-23).

Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car
again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the
other side of the superhighway and, after some vehicles ignored her, she was finally able to flag
down a fish vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on
 the ground and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-
26).

On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's
P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)6

As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to
appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even
slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he claimed that she fell
down when she stubbed her toe while running across the highway. 7

Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and
parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much later,
when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was
in dire need of money for the medication of his ulcers.9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to
what crime was committed by appellants. The trial court cohered with the submission of the defense that the crime
could not be kidnapping for ransom as charged in the information. We likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the
accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the
same holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific intent in
perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion
thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature
of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter
absorbs the former, or whether the accused had his own personal motives for committing the murder independent of
his membership in the rebellious movement in which case rebellion and murder would constitute separate
offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in the actual performance
of his official duties, the motive of the offender assumes importance because if the attack was by reason of the
previous performance of official duties by the person in authority, the crime would be direct assault; otherwise, it
would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time
they committed the wrongful acts against complainant, other than the extortion of money from her under the
compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric
qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his predicament
on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me
"Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told
her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic) advances from our
office but they refused to give me any bale (sic). . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely
on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of
her freedom of action was merely an incident in the commission of another offense primarily intended by the
offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held
that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time
but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such
other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not
constitute kidnapping or serious illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty
is clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing the
P7,000.00 to your nephew?

A Santo Domingo Exit.

Q And how about the checks, where were you already when the checks was (sic)
being handed to you?

A Also at the Sto. Domingo exit when she signed the checks.

Q If your intention was just to robbed (sic) her, why is it that you still did not
allow her to stay at Sto. Domingo, after all you already received the money and
the checks?

A Because we had an agreement with her that when she signed the checks we
will take her to her house at Villa (sic) Verde.

Q And why did you not bring her back to her house at Valle Verde when she is
(sic) already given you the checks?

A Because while we were on the way back I (sic) came to my mind that if we
reach Balintawak or some other place along the way we might be apprehended
by the police. So when we reached Santa Rita exit I told her "Mam (sic) we will
already stop and allow you to get out of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the
immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the
money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that
releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks
demanded from her at gun point, what she gave under the circumstances of this case can be equated with or was in
the concept of ransom in the law of kidnapping. These were merely amounts involuntarily surrendered by the victim
upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold
that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial
court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in the
information that the victim was carried away and extorted for more money. The accused admitted
that the robbery was carried on from Araneta Avenue up to the North Superhighway. They
likewise admitted that along the way they intimidated Ma. Socorro to produce more money that
she had with her at the time for which reason Ma. Socorro, not having more cash, drew out three
checks. . . .

In view of the foregoing the court is of the opinion that the crimes committed is that punishable
under P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) under which where
robbery on the highway is accompanied by extortion the penalty is reclusion perpetua.18
The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree,
"P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of
the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the
Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267
of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage.
This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this
term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in
line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and
brigands are synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the
proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more
than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American
occupation of our country, roving bands were organized for robbery and pillage and since the then existing law
against robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the
subject and are of continuing validity:

The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart
of the offense consists in the formation of a band by more than three armed persons for the
purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It
would not be necessary to show, in a prosecution under it, that a member or members of the band
actually committed robbery or kidnapping or any other purpose attainable by violent means. The
crime is proven when the organization and purpose of the band are shown to be such as are
contemplated by art 306. On the other hand, if robbery is committed by a band, whose members
were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime
would not be brigandage, but only robbery. Simply because robbery was committed by a band of
more than three armed persons, it would not follow that it was committed by a band of brigands.
In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a
robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular
robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law
legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not
have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the
contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the
time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or
construction is the best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery
perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein,
and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular
clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still
committing acts of depredation upon the persons and properties of innocent and defenseless
inhabitants who travel from one place to another, thereby disturbing the peace, order and
tranquility of the nation and stunting the economic and social progress of the people:
 WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are
among the highest forms of lawlessness condemned by the penal statutes of all countries;

WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts
of depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all
obstacles to the economic, social, educational and community progress of the people. (Emphasis
supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as
their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from
one place to another," and which single act of depredation would be capable of "stunting the economic and social
progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal
statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and
community progress of the people, " such that said isolated act would constitute the highway robbery or brigandage
contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous.

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by
increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the
highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require
that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said
accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly
underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed
not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on
the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained
in Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for
that matter, under the old Brigandage Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by
appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside
from what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts
the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a
literal interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is
an elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter
thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the
letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines
in favor of the milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for the application
of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus
of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend
that the aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws,
that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is
forcibly taken at gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at
the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus
rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one
where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and
traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No.
532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was
committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the
situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision
precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery
conceived and committed by appellants in this case does not constitute highway robbery or brigandage.
Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and
punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum
period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their
concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their respective
liabilities, the aggravating circumstances of craft 29 shall be appreciated against both appellants and that of abuse of
confidence shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of
them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in the
maximum period as decreed by Article 295 of the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery
upon an information charging them with kidnapping for ransom, since the former offense which has been proved is
necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that
the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or
possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to
be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation
by the offender of the things subject of the robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which, as formulated,
allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the complainant. Such
allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of
complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through
intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could
negate the presence of any of the elements of robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered
CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in
Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an
indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years
of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento,
the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.

 EN BANC
[G.R. No. 142773. January 28, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM, LEON DELIM, MANUEL
DELIM alias BONG (At Large), ROBERT DELIM (At Large), and RONALD
DELIM alias BONG, accused-appellants.

DECISION
CALLEJO, SR., J.:

Before the Court on automatic review is the Decision, [1] dated January 14, 2000, of the Regional Trial Court,
Branch 46, Urdaneta City, finding accused-appellants Marlon Delim, Leon Delim and Ronald Delim guilty beyond
reasonable doubt of the crime of murder and sentencing them to suffer the supreme penalty of death. The court also
ordered accused-appellants to pay, jointly and severally, the heirs of the victim the sums of P75,000.00 as moral
damages and P25,000.00 as exemplary damages.
Accused-appellants Marlon, Ronald and Leon, together with Manuel alias Bong and Robert, all surnamed Delim,
were indicted for murder under an Information dated May 4, 1999 which reads:

That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with short firearms barged-in and entered the house of
Modesto Delim and once inside with intent to kill, treachery, evident premedidation (sic), conspiring with one
another, did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth,
brought out and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house guarded and
prevented the wife and son of Modesto Delim from helping the latter, thereafter with abuse of superior strength
stabbed and killed said Modesto Delim, to the damage and prejudice of his heirs.

CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659. [2]

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were
apprehended. Accused Robert and Manuel remain at-large.
At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not guilty to the
charge.
At the trial, the prosecution established the following relevant facts[3]
Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald Delim. Modesto
Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname Delim after he was adopted by the
father of Marlon, Manuel and Robert. However, Modestos wife, Rita, an illiterate, and their 16-year old son, Randy,
continued using Manalo Bantas as their surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald,
Manuel and Leon as their relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald
used to visit Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison,
Pangasinan.
 On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to have their
supper in their home. Joining them were Modesto and Ritas two young grandchildren, aged 5 and 7 years old. They
were about to eat their dinner when Marlon, Robert and Ronald suddenly barged into the house and closed the
door. Each of the three intruders was armed with a short handgun. Marlon poked his gun at Modesto while Robert and
Ronald simultaneously grabbed and hog-tied the victim. A piece of cloth was placed in the mouth of
Modesto.[4] Marlon, Robert and Ronald herded Modesto out of the house on their way towards the direction of Paldit,
Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and Manuel, who were
also armed with short handguns, stayed put by the door to the house of Modesto and ordered Rita and Randy to stay
where they were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the following day, January 24,
1999.
As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Nio, at Sitio Labayog,
informed the latter of the incident the night before and sought his help for the retrieval of Modesto. Randy was advised
to report the matter to the police authorities. However, Randy opted to first look for his father. He and his other
relatives scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison, Pangasinan, around 200
meters away from Modestos house, to locate Modesto but failed to find him there. On January 25, 1999, Randy and
his relatives returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him
there. On January 26, 1999, Randy reported the incident to the police authorities.
At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida Pucal, Pepito
Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan and this time they
found Modesto under thick bushes in a grassy area. He was already dead. The cadaver was bloated and in the state of
decomposition. It exuded a bad odor. Tiny white worms swarmed over and feasted on the cadaver. Randy and his
relatives immediately rushed to the police station to report the incident and to seek assistance.
When informed of the discovery of Modestos cadaver, the local chief of police and SPO2 Jovencio Fajarito and
other policemen rushed to the scene and saw the cadaver under the thick bushes. Pictures were taken of the
cadaver.[5] Rita and Randy divulged to the police investigators the names and addresses of Marlon, Ronald, Robert,
Leon and Manuel, whom they claimed were responsible for the death of Modesto. Rita and Randy were at a loss why
the five malefactors seized Modesto and killed him. Rita and Randy gave their respective sworn statements to the
police investigators.[6] Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but failed to
find them in their respective houses. The police officers scoured the mountainous parts of Barangays Immalog and
Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which reads:

SIGNIFICANT EXTERNAL FINDINGS:

- Body - both upper extremities are flexed

- both lower extremities are flexed

- (+) body decomposition

- (+) worms coming out from injuries

- 10 x 10 ml. GSW, pre-auricular area, right

- 20 x 20 ml. GSW, mandibular areas, right

- 10 x 10 ml. GSW, maxillary area, right

- 10 x 10 ml. GSW, below middle nose, directed upward (POE)

- 30 x 40 ml. GSW, mid parieto occipital area (POEx)

- 2 x 1 cms. lacerated wound, right cheek

- 1 x 1 cm. stabbed wound, axillary area, left

- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm

- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm

- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm

- 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm

- #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3 rd, left forearm

- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm

- 10 x 6 cms. Inflamed scrotum

- penis inflamed

SIGNIFICANT INTERNAL FINDINGS:

- no significant internal findings

CAUSE OF DEATH:

GUN SHOT WOUND, HEAD.[7]

The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The police
investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no licenses for their firearms.[8]
Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had pending
cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and for robbery in band
in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan. [9]
To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. [10]
Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and sisters were in
their house at Asan Norte, Sison, Pangasinan about two kilometers away from Modestos house.
He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing him. He
theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier who allegedly had a quarrel
with him concerning politics.
Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita Estabillo at No.
55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after leaving Asan Norte, Sison,
Pangasinan. Since then, he had been working for Sally Asuncion at a hollow-block factory in that city where he was
a stay-in worker.
Sally Asuncion corroborated Leons alibi. She testified that Leon Delim never went home to his hometown in
Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred that on January 23, 1999, his
brother was at her house to give her his laundry. She claimed that the distance between Laoag City and Bila, Sison,
Pangasinan can be traversed in six hours by bus. Leon presented a Barangay Certificate to prove that he was a resident
of Laoag City from January 1998 up to February 1999.[11]
 Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January 29,
1999. During his stay there, he lived with his sister, Francisca Delim.Upon his return to Manila on January 29, 1999,
he immediately proceeded to Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after
his sojourn in Dumaguete City.
The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive portion of the
trial courts decision reads:

WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby rendered against Ronald
Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an offense defined and
penalized under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and the Court sentences Marlon
Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as
provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify the heirs of Modesto
Delim the sum of P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary damages.

The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme
Court, and to prepare the mittimus fifteen (15) days from date of promulgation.

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta City is hereby ordered
to transmit the persons of Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons, Muntinlupa
City, fifteen days from receipt of this decision.

SO ORDERED.[12]

The trial court appreciated treachery as a qualifying circumstance and of taking advantage of superior strength,
nighttime and use of unlicensed firearms as separate of aggravating circumstances in the commission of the
crime. Marlon, Ronald and Leon, in their appeal brief, assail the decision alleging that:
I

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE CASE AT
BAR.

III

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-
APPELLANTS DEFENSE OF ALIBI.[13]

Before resolving the merits of the case at bar, we first resolve the matter of whether the crime charged in the
Information is murder or kidnapping. During the deliberation, some distinguished members of the Court opined that
under the Information, Marlon, Ronald and Leon are charged with kidnapping under Article 267 of the Revised Penal
Code and not with murder in its aggravated form in light of the allegation therein that the accused willfully, unlawfully
and feloniously grab(bed), h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto
Delim (while) Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter. They submit that the foregoing allegation constitutes the act of deprivation of
liberty of the victim, the gravamen in the crime of kidnapping. They contend that the fact that the Information went
further to charge accused with the killing of the victim should be of no moment, the real nature of the criminal charge
being determined not from the caption or the preamble of the Information nor from the specification of the law alleged
to have been violated these being conclusions of law but by the actual recital of facts in the complaint or
information. They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald and
Leon to kill Modesto, they are not criminally liable for the death of the victim but only for kidnapping the victim.
It bears stressing that in determining what crime is charged in an information, the material inculpatory facts
recited therein describing the crime charged in relation to the penal law violated are controlling. Where the specific
intent of the malefactor is determinative of the crime charged such specific intent must be alleged in the
information and proved by the prosecution. A decade ago, this Court held in People v. Isabelo Puno, et al.,[14] that
for kidnapping to exist, there must be indubitable proof that the actual specific intent of the malefactor is to deprive
the offended party of his liberty and not where such restraint of his freedom of action is merely an incident in the
commission of another offense primarily intended by the malefactor. This Court further held:

x x x. Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has been held that the
detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for
the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other
offenses they committed in relation thereto, but the incidental deprivation of the victims liberty does not constitute
kidnapping or serious illegal detention.[15]

If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the victims
liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing, and hence, is merged
into, or absorbed by, the killing of the victim. [16] The crime committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as disclosed in the information or criminal
complaint that is determinative of what crime the accused is charged with--that of murder or kidnapping.
Philippine and American penal laws have a common thread on the concept of specific intent as an essential
element of specific intent crimes. Specific intent is used to describe a state of mind which exists where circumstances
indicate that an offender actively desired certain criminal consequences or objectively desired a specific result to
follow his act or failure to act.[17] Specific intent involves a state of the mind. It is the particular purpose or specific
intention in doing the prohibited act. Specific intent must be alleged in the Information and proved by the state in a
prosecution for a crime requiring specific intent.[18] Kidnapping and murder are specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred from the
circumstances of the actions of the accused as established by the evidence on record. [19]
Specific intent is not synonymous with motive. Motive generally is referred to as the reason which prompts the
accused to engage in a particular criminal activity. Motive is not an essential element of a crime and hence the
prosecution need not prove the same. As a general rule, proof of motive for the commission of the offense charged
does not show guilt and absence of proof of such motive does not establish the innocence of accused for the crime
charged such as murder.[20] The history of crimes shows that murders are generally committed from motives
comparatively trivial.[21] Crime is rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the
specific intent is to deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be
convicted for kidnapping.[22] In kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge
the death of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific intent of the malefactors in barging into
the house of Modesto was to kill him and that he was seized precisely to kill him with the attendant modifying
circumstances. The act of the malefactors of abducting Modesto was merely incidental to their primary purpose of
killing him.Moreover, there is no specific allegation in the information that the primary intent of the malefactors
was to deprive Modesto of his freedom or liberty and that killing him was merely incidental to
kidnapping.[23] Irrefragably then, the crime charged in the Information is Murder under Article 248 of the Revised
Penal Code and not Kidnapping under Article 268 thereof.
The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite quantum of
evidence to prove that Marlon, Ronald and Leon are guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil of doubt. The
prosecution must rely on the strength of its own evidence and not on the weakness of the evidence of the accused. The
proof against the accused must survive the test of reason; the strongest suspicion must not be permitted to sway
judgment.[24]
In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first,
the criminal act and second, defendants agency in the commission of the act. [25] Wharton says that corpus
delicti includes two things: first, the objective; second, the subjective element of crimes. [26] In homicide (by dolo) and
in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death
was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or
suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which
produced the death.[27] To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or
circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent to kill. Such
evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds
sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of
the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by
circumstantial or presumptive evidence.[28]
In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto sustained
five (5) gunshot wounds. He also sustained seven (7) stab wounds,[29] defensive in nature. The use by the malefactors
of deadly weapons, more specifically handguns and knives, in the killing of the victim as well as the nature, number
and location of the wounds sustained by said victim are evidence of the intent by the malefactors to kill the victim
with all the consequences flowing therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps v. State:[31]

This rule, that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is
applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and
not from the impulse of blind passion, the law presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the circumstances of the homicide do not of
themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was
designed by the slayer; and the burden of proof is on him to show that it was otherwise.

The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It relied on
circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of murder. Circumstantial
evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be
inferred according to reason and common experience.[32] What was once a rule of account respectability is now
entombed in Section 4, Rule 133 of the Revised Rules of Evidence which states that circumstantial evidence,
sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction if the
following requisites concur:

x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been
established; and (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond
reasonable doubt.[33]

The prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial
evidence, and the proof of each being confirmed by the proof of the other, and all without exception leading by mutual
support to but one conclusion: the guilt of accused for the offense charged. [34] For circumstantial evidence to be
sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the
hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with
every other rational hypothesis except that of guilt.[35] If the prosecution adduced the requisite circumstantial evidence
to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the
evidence of the prosecution.
In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to prove that
accused-appellants, in confabulation with their co-accused, conspired to kill and did kill Modesto:
 1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed with a
handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then seized Modesto and herded
him out of his house:
FISCAL TOMBOC: What were you doing then at that time in your house?
A We were eating, sir.
Q You said we, who were your companions eating then at that time?
A My father, my mother and the two children and myself, sir.
Q While taking your supper that time, do you recall if there was anything unusual that happened at that
time?
A When we were about to start to eat three armed men entered our house.
Q Do you know these three armed men who entered your house?
A Yes, sir.
Q Who are they, name them one by one?
A Marlon Delim, Robert Delim and Ronald Delim.
Q Are these three persons inside the courtroom now?
A Two of them, sir.
Q Who are these two who are inside the courtroom?
A Marlon and Ronald, sir.
Q Will you please stand up and point to them?
A (Witness is pointing to a person seated on the bench inside the courtroom, who, when his name was asked
answered Marlon Delim. Likewise, witness is pointing unto a person seated on the bench inside the
courtroom, who, when his name was asked he answered Ronald Delim).
Q You said that these two armed persons entered your house, what kind of arm were they carrying at that
time?
A Short handgun, sir.
Q When these three armed persons whom you have mentioned, armed with short firearms, what did they
do then when they entered your house?
A They took my father, sir.
Q Who took your father?
A Marlon Delim, Robert Delim and Ronald Delim, sir.
Q When these three persons took your father, what did you do then?
A None, sir.
COURT: How did they get your father?
A They poked a gun and brought him outside the house, sir.
FISCAL TOMBOC: Who poked a gun?
A Marlon Delim, sir.
Q Again, Mr. Witness, will you point to the person who poked a gun?
 A (Witness is pointing to Malon (sic) Delim, one of the accused).
Q After bringing your father out from your house, what transpired next?
A Manuel Delim and Leon Delim said, Stay in your house, and guarded us.
COURT: You said your father was taken out, who?
A Marlon, Robert and Ronald, sir.
FISCAL TOMBOC: Where did these three persons bring your father?
A I do not know where they brought my father, sir.
COURT: Was your father taken inside your house or outside?
A Inside our house, sir.
Q You said that Marlon poked a gun at your father, is that correct?
A Yes, sir.
Q What did Ronald and Robert do while Marlon was poking his gun to your father?
A Ronald and Robert were the ones who pulled my father out, sir. [36]
Randys account of the incident was corroborated by his mother, Rita, who testified:
PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at around 6:30 in
the evening while preparing for your supper three (3) armed men entered inside your house, who were
these three (3) men who entered your house?
A I know, Marlon, Bongbong and Robert, sir.
ATTY. FLORENDO: We just make of record that the witness is taking her time to answer, Your Honor.
PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered your house,
are these three (3) persons who entered your house in Court now?
A They are here except the other one, sir.
Q Will you please step down and point to the persons who entered your house?
A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is Ronald Delim.
Q After these three (3) armed men entered your house, what happened then?
A My husband was brought out, sir.
Q What is the name of your husband?
A Modesto Delim, sir.[37]
2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun, acted as a
lookout when he stood guard by the door of the house of Modesto and remained thereat until 7:00 a.m. of the next
day:
FISCAL TOMBOC: When your father was pulled out from your house by these three persons, what did
you and your mother do while these three persons were taking out of your house?
A We did not do anything because Manuel and Leon Delim guarded us.
COURT: Where, in your house?
A Yes, sir.
 FISCAL TOMBOC: From that very time that your father was pulled out by these three persons Marlon,
Robert and Ronal (sic), where were Leon and Manuel then?
A They were at the door, sir.
COURT: Why do you know that they were guarding you?
A Because they were at the door, sir.
FISCAL TOMBOC: What was their appearance that time when these two persons were guarding you, these
Leon and Manuel?
A They were armed, sir.
Q What do you mean by armed?
A They have gun, sir.
Q What kind of firearm?
A Short firearm, sir.
Q By the way, where are these Leon and Manuel now, if you know?
A Leon is here, sir.
Q About Manuel?
A None, sir.
Q Will you please stand up and point at Leon, Mr. Witness?
A (Witness pointed to a person seated on the bench inside the courtroom, who when his name was asked,
answered, Leon Delim).[38]
3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house with Modesto
in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24, 1999 to prevent them from seeking
help from their relatives and police authorities.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was found under
the thick bushes in a grassy area in the housing project located about 200 meters away from the house of Modesto. The
cadaver exuded bad odor and was already in the state of decomposition:
Q So what did you do then on January 27, where did you look for your father?
A The same place and at 3:00 oclock P.M., we were able to find my father.
COURT: Where?
A At the housing project at Paldit, Sison, Pangasinan, sir.
FISCAL TOMBOC: Do you have companions at that time when you were able to look for your father on
January 27, 1999 at 3:00 oclock P.M.?
A Yes, sir.
Q Who?
A My Aunt, sir.
Q What is the name of your Aunt?
A Nida Pucal, sir.
Q Who else?
A Pepito Pucal, Bernard Osias and Daniel Delim, sir.
 COURT: When you found your father, what was his condition?
A He was dead, sir.
COURT: Go ahead.
FISCAL TOMBOC: You said that he was already dead, what was his appearance then when you saw him
dead?
A He has bad odor, sir, in the state of decompsition (sic).[39]
The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of Modesto was in a
state of decomposition, with tiny white worms crawling from his wounds, and that his penis and scrotum were
inflamed. The victim sustained five gunshot wounds and defensive wounds on the left arm and forearm:
PROS. TOMBOC:
Q Will you please tell the Honorable Court your findings, Doctora?
WITNESS:
A First finding: Upon seeing the cadaver, this is the position of the body, both upper extremities are flexed
and both lower extremities are flexed (Nakakukot).
Q How many days had already elapsed when you autopsied the cadaver of the victim, Doctora?
A Four (4) days upon the recovery of the body, sir.
Q And what was your findings Doctora?
A The body was already under the state of decomposition, sir, with foul odor and there were so many
worms coming out from the injuries, there were tiny white worms, sir.
Q What else did you observe Doctora?
A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the victim was an igorot
(sic) and they have tradition that they will bury immediately. Whether they like it or not I should do
it, sir.
Q What else Doctora?
A And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.
And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also 20 ml x 20
ml. GSW, mandibular area, right; I cannot also determine the exit.
Q So there were two (2) gunshot wounds (GSW) Doctora?
A Yes sir.
And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW, below middle
nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx).
Q How many all in all are the gunshot wound?
A Five (5) sir.
And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed wound, axillary area, left;
1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd,
left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial
aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd,
left forearm.
Q How many stabbed wound are there Doctora?
A There were seven (7) stabbed wounds, sir.
 Q Those stabbed wounds were defensive wounds, Doctora?
A Yes sir.[40]
The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and the distention
of his scrotum and penis are evidence that the cadaver was in the stage of putrefaction and that the victim had been
dead for a period ranging from three to six days. [41] Admittedly, there are variant factors determinative of the exact
death of the victim. An equally persuasive authority states:

Chronological Sequence of Putrefactive Changes Occurring in Tropical Region:

Time Since Death Condition of the Body

48 hours Ova of flies seen.

Trunk bloated. Face discolored and swollen. Blisters present.

Moving maggots seen.

72 hours Whole body grossly swollen and

disfigured. Hair and nails loose.

Tissues soft and discolored.[42]

The lapse of two or three to four days from the seizure of the victim in the evening of January 23, 1999 to the
discovery of his cadaver which was already in the state of putrefaction in the afternoon of January 27, 1999, about
200 meters away from his house, is consistent with and confirmatory of the contention of the prosecution that the
victim was killed precisely by the very malefactors who seized him on January 23, 1999.
5. When police authorities went to the residences of all the malefactors, the latter had flown the coop and were
nowhere to be found:
COURT: In connection with this case, you investigated the wife and son of Modesto Delim?
A Yes, sir.
Q In the course of the investigation did you come to know who were the suspects?
A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his brothers, sir.
Q What are the names of the brothers?
A Manuel Delim, Leon Delim I cannot remember the others, sir.
Q By reason of that information were you able to apprehend any of them for investigation?
A No, sir.
Q Why?
A Because when we were dispatched by the Chief of Police no Delim brothers could be found, they all left
the place, sir.
Q In what place did you look for the brothers Delim?
A Within the vicinity, sir.
Q In what place?
 A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place where the cadaver
was found in Paldit, sir.
Q Where did you look for the Delim brothers?
A Nearby barangays, Immalog, sir.
Q Wherelse (sic)?
A Labayog, Sison, sir.
Q Wherelse?
A In mountainous part of Immalog, part of Tuba Benguet, sir.
Q What was the result?
A Negative result, sir.[43]
6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of Modesto and
Rita:
COURT: These Leon and Manuel Delim are they known to you prior to that day, January 23, 1999?
A Yes, sir, I know them.
Q Why do you know Manuel and Leon prior to January 23, 1999?
A They are my neighbors, sir.
Q How about Marlon, Robert and Bongbong do you know them before January 23, 1999?
A I know them, sir.
Q Why do you know them?
A They used to go to our house, sir.
Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your husbands name is
Modesto Delim are they related with each other?
A Yes, sir.[44]
The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is strong
circumstantial evidence of their guilt for the death of Modesto.Although flight after the commission of an offense does
not create a legal presumption of guilt, nevertheless, the same is admissible in evidence against them and if not
satisfactorily explained in a manner consistent with their innocence, will tend to show that they, in fact, killed
Modesto.[45]
It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill
Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or grudge between
Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on the other before the incident, or any
motivation on the part of the three malefactors to cause harm to Modesto. Nonetheless, it cannot thereby be concluded
that a person or persons other than Marlon, Ronald and Leon were criminally responsible for the death of the victim. It
is a matter of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all. [46] In
this case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun, forcibly took
Modesto from his house at the gunpoint, hogtied, put a piece of cloth in his mouth and after Ronald and Marlon had
left the house with Modesto in tow, Rita heard three gunshots or so and the cadaver of Modesto was found concealed
under the bushes and already in a state of putrefaction in the afternoon of January 27, 1999. Modesto sustained several
gunshot wounds and died because of a gunshot wound on the head. The criminal acts and the connection of Marlon,
Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt, the act itself furnishes
the evidence, that to its perpetration there was some causes or influences moving the mind.[47] The remarkable tapestry
intricately woven by the prosecution should not be trashed simply because the malefactors had no motive to kill
Modesto.
 Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald and Leon to
rebut the same and explain what happened to the victim after taking him from his house in the evening of January 23,
1999. They may have freed the victim shortly after taking him, or the victim may have been able to escape and that
thereafter a person or some other persons may have killed him. However, Marlon, Ronald and Leon failed to give any
explanation. Instead, they merely denied having seized and killed the victim and interposed alibi as their defense.
Leon is equally guilty for the death of Modesto because the evidence on record shows that he conspired with
accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the victim.
There is conspiracy when two or more persons agree to commit a felony and decide to commit it. [48] Conspiracy
must be proven with the same quantum of evidence as the felony itself, more specifically by proof beyond reasonable
doubt. Conspiracy is not presumed. It may be proved by direct evidence or by circumstantial evidence. Conspiracy is
deducible from the acts of the malefactors before, during and after the commission of the crime which are indicative
of a joint purpose, concerted action and concurrence of sentiment.[49] To establish conspiracy, it is not essential that
there be proof as to the existence of a previous agreement to commit a crime. [50] It is sufficient if, at the time of the
commission of the crime, the accused had the same purpose and were united in its execution. If conspiracy is
established, the act of one is deemed the act of all. It matters not who among the accused actually shot and killed the
victim.[51] This is based on the theory of a joint or mutual agency ad hoc for the prosecution of the common plan:

x x x The acts and declarations of an agent, within the scope of his authority, are considered and treated as the acts
and declarations of his principal. What is so done by an agent, is done by the principal through him, as his mere
instrument. Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). If
the conspiracy be proved to have existed, or rather if evidence be given to the jury of its existence, the acts of one in
furtherance of the common design are the acts of all; and whatever one does in furtherance of the common design,
he does as the agent of the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.) 1, 710. [52]

In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice, they wield one
arm and the law says that the acts, words and declaration of each, while in the pursuit of the common design, are the
acts, words and declarations of all.[53]
In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed with a
handgun. Marlon and Ronald barged into said house while Leon stood guard by the door thereof. After Marlon and
Ronald had left with Modesto in tow, Leon stood by the door and warned Randy and Rita not to leave the house. Leon
stood guard by the door of the house until 7:00 a.m. of January 24, 1999 when he left the house. The overt acts of all
the malefactors were so synchronized and executed with precision evincing a preconceived plan or design of all the
malefactors to achieve a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in
the commission of the crime were (a) to act as a lookout; (b) to ensure that Rita and Randy remain in their house to
prevent them from seeking assistance from police authorities and their relatives before their mission to kill Modesto
shall have been a fait accompli as well as the escape of Marlon and Ronald.[54] Patently, Leon, a lookout for the group,
is guilty of the killing of Modesto.[55] Leon may not have been at the situs criminis when Modesto was killed by
Marlon and Ronald nevertheless he is a principal by direct participation.[56] If part of a crime has been committed in
one place and part in another, each person concerned in the commission of either part is liable as principal. No matter
how wide may be the separation of the conspirators, if they are all engaged in a common plan for the execution of a
felony and all take their part in furtherance of the common design, all are liable as principals. Actual presence is not
necessary if there is a direct connection between the actor and the crime. [57]
Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same were marred
by inconsistencies:
1. Randy initially stated that he did not know where the assailants brought his father. Later however, Randy
claimed that the malefactors proceeded to the direction of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their house. She
later changed her testimony and declared that it was Robert, together with Marlon and Ronald who
barged into the house;
3. Rita likewise testified that two men stood outside the house guarding them. Later, she testified that after
the three men brought out the victim, the two other accused entered the house and guarded them there;
 4. Rita claimed that she went out to look for her husband the next day, or on January 25, 1999, and she was
accompanied by her son Randy. However, Randy testified that he was alone when he looked for his
father from January 24 to 26, 1999.[58]
We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial court, its
calibration of the collective testimonies of witnesses and its assessment of the probative weight thereof and its
conclusions culled from its findings are accorded by the appellate court great respect, if not conclusive effect, because
of its unique advantage of observing at close range the demeanor, deportment and conduct of the witnesses as they
give their testimonies before the court. In the present case, the trial court gave credence and full probative weight to
the testimonies of the witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were
moved by any improper or ill motive in testifying against the malefactors and the other accused; hence, their
testimonies must be given full credit and probative weight.[59] The inconsistencies in the testimonies of Rita and Randy
do not render them incredible or their testimonies barren of probative weight. It must be borne in mind that human
memory is not as unerring as a photograph and a persons sense of observation is impaired by many factors including
the shocking effect of a crime. A truth-telling witness is not always expected to give an error-free testimony
considering the lapse of time and the treachery of human memory. What is primordial is that the mass of testimony
jibes on material points, the slight clashing of statements dilute neither the witnesses credibility nor the veracity of his
testimony.[60] Variations on the testimony of witnesses on the same side with respect to minor, collateral or incidental
matters do not impair the weight of their united testimony to the prominent facts. [61] Inconsistencies on minor and
trivial matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the suspicion of
rehearsed testimony.[62]
Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms and the true
meaning of answers to isolated questions propounded to a witness is to be ascertained by due consideration of all the
questions propounded to the witness and his answers thereto. [63]
Randys testimony that he did know where the malefactors brought his father is not inconsistent with his testimony
that Ronald and Marlon brought his father towards the direction of Paldit, Sison, Pangasinan. Randy may not have
known the destination of accused-appellants but he saw the direction to which they went. While it may be true that
when asked to identify the three who barged into their house, Rita pointed to Leon as one of them, however, Rita had
been consistent throughout her testimony that those who barged into their house were Ronald and Marlon. Leons
counsel never cross-examined Rita and impeached her testimony on her identification of Leon as one of those who
barged into their house to give her an opportunity to explain her perceived inconsistency conformably with Rule 132,
Section 13 of the Revised Rules of Evidence which reads:

Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his
present testimony, the statements must be related to him, with the circumstances of the times and places and the
persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any question is put to him concerning them. [64]

Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired impeachment
of her.[65] As to whether Rita and Randy were together in looking for Modesto or Leon merely stood guard by the door
of the house or entered the house are inconsequential. The fact is that Leon stood guard throughout the night to prevent
Rita and Randy from seeking assistance for the seizure and killing of Modesto.
This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita bear the
earmarks of truth and sincerity. Despite intense and grueling cross-examination, they responded with consistency upon
material details that could only come from a firsthand knowledge of the shocking events which unfolded before their
eyes. The Court thus finds no cogent reason to disregard the findings of the trial court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving credence and
probative weight to their evidence to prove their defense of alibi.They aver that their collective evidence to prove their
defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in criminal prosecution
because the same is easy to concoct between relatives, friends and even those not related to the offender. [66] It is hard
for the prosecution to disprove. For alibi to merit approbation by the trial court and this Court, Marlon, Ronald and
Leon are burdened to prove with clear and convincing evidence that they were in a place other than the situs criminis at
the time of the commission of the crime; that it was physically impossible for them to have committed the said
crime.[67] They failed to discharge their burden. Moreover, Rita and Randy positively and spontaneously identified
Marlon, Ronald and Leon as the culprits. The house of Ronald, where he claimed he was when the crime was
committed, was only two kilometers away from the house of Modesto and can be negotiated by a tricycle. Leon failed
to adduce any documentary evidence to prove his employment by Sally Asuncion. The barefaced fact that he was a
resident of Laoag City does not constitute proof that he was in Laoag City on the day of the commission of the
crime. With respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided in,
left Dumaguete City and arrived in Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of treachery in
the killing of Modesto. The trial court likewise appreciated nighttime and abuse of superior strength and the use of
unlicensed firearms as separate aggravating circumstances. The Office of the Solicitor General contends that indeed
treachery was attendant in the killing of Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in
and penalized by Article 248 of the Revised Penal Code.
The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and penalized by
Article 248 of the Revised Penal Code.
Qualifying circumstances such as treachery and abuse of superior strength must be alleged and proved clearly
and conclusively as the crime itself. Mere conjectures, suppositions or presumptions are utterly insufficient and cannot
produce the effect of qualifying the crime.[68] As this Court held: No matter how truthful these suppositions or
presumptions may seem, they must not and cannot produce the effect of aggravating the condition of
defendant.[69] Article 14, paragraph 16 of the Revised Penal Code provides that there is treachery when the offender
commits any of the crimes against the person, employing means, methods or forms in the execution thereof which
tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended
party might make. For treachery to be appreciated as a qualifying circumstance, the prosecution is burdened to prove
the following elements: (a) the employment of means of execution which gives the person attacked no opportunity to
defend himself or retaliate; (b) the means of execution is deliberately or consciously adopted. [70] Although the victim
may have been defenseless at the time he was seized but there is no evidence as to the particulars of how he was
assaulted and killed, treachery cannot be appreciated against the accused. [71] In this case, the victim was defenseless
when seized by Marlon and Ronald. However, the prosecution failed to present any witness or conclusive evidence
that Modesto was defenseless immediately before and when he was attacked and killed. It cannot be presumed that
although he was defenseless when he was seized the victim was in the same situation when he was attacked, shot and
stabbed by the malefactors. To take advantage of superior strength means to purposely use force that is out of
proportion to the means of defense available to the person attacked.[72] What is primordial, this Court held in People
v. Rogelio Francisco[73] is that the assailants deliberately took advantage of their combined strength in order to
consummate the crime. It is necessary to show that the malefactors cooperated in such a way as to secure advantage
from their superiority in strength.[74] In this case, the prosecution failed to adduce evidence that Marlon and Ronald
deliberately took advantage of their numerical superiority when Modesto was killed. The barefaced facts that the
malefactors outnumbered Modesto and were armed while Modesto was not does not constitute proof that the three
took advantage of their numerical superioty and their handguns when Modesto was shot and stabbed.[75]
In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and penalized by
Article 249 of the Revised Penal Code with reclusion temporal in its full period.
Although the special aggravating circumstance of the use of unlicensed firearms was proven during the trial,
there is no allegation in the Information that Marlon, Ronald and Leon had no license to possess the firearm. Lack of
license to possess a firearm is an essential element of the crime of violation of PD1866 as amended by Republic Act
No. 8294, or as a special aggravating circumstance in the felony of homicide or murder. [76] Neither can dwelling,
although proven, aggravate the crime because said circumstance was not alleged in the Information as required by
Rule 110, Section 8 of the Revised Rules of Court.[77] Although this rule took effect on December 1, 2000, after the
commission of the offense in this case, nonetheless it had been given retroactive effect considering that the rule is
favorable to the accused.[78]
There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon should be
meted an indeterminate penalty, the minimum of which shall be taken from the entirety of prision mayor, ranging
from 6 years and one day to 12 years and the maximum period of which shall be taken from the medium period
of reclusion temporal, ranging from 14 years, 8 months and one day to 17 years and 4 months.
 Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum
of P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with prevailing
jurisprudence.[79] The amount of P25,000.00 as exemplary damages is in order.[80] In addition, civil indemnity in the
amount of P50,000.00 should be awarded without need of proof, likewise in consonance with prevailing
jurisprudence.[81]
IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with
MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found guilty beyond
reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of the Revised Penal Code. There
being no modifying circumstances in the commission of the crime, each of accused-appellants is hereby meted an
indeterminate penalty of from ten (10) years and one (1) day of prision mayor in its maximum period as minimum to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period as
maximum. Accused-appellants are hereby ordered to pay, jointly and severally, to the heirs of the victim the amount
of P50,000.00 by way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount
of P25,000.00 by way of exemplary damages.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused
himself, because from the very nature of these facts and from the circumstances surrounding the incident upon
which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the
defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any doubt, the following statement of the
material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province,
and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters
No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied
solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small
room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the
building, by which communication was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or
lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were
in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the
room there was but one small window, which, like the door, opened on the porch. Aside from the door and window,
there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly
awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?"
He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent
upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If
you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which
had been placed against the door. In the darkness and confusion the defendant thought that the blow had been
inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after
events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against
which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at
the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down
on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the
moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and
ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of
which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because
of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to
the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant
his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends,
Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the
mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room
at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano
heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in
the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately
went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression
that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy
in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way
into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being
attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from
the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple
homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum
penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted
that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-
defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception
from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill
the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room,
with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly
justified in using any available weapon to defend himself from such an assault, and in striking promptly, without
waiting for the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his
property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That
there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the
property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who,
by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts
were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had
known the true state of the facts at the time when he committed the act. To this question we think there can be but
one answer, and we hold that under such circumstances there is no criminal liability, provided always that the
alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in
those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence;
and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or
misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that
which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and
cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as
defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as
most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the
crime or offense must be committed with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties
described therein, unless it appears that he is exempted from liability under one or other of the express provisions of
article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain
provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the
general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential
requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule,
such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one
voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to
commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little
distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not.
Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's
New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm
and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since,
therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that
the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does
greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded
from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the
wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say
that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to
do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words
"con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted
from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and
included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal
responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of
the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown
above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there is
no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is
no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal
Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May
31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the
operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil
effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church,
there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every
action or ommission punished by law; nor is he guilty of criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the
commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted
to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes
and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which
are as follows:
 He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave
crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall
incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being
subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or
less than those contained in the first paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct
inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word
"willful" as used in English and American statute to designate a form of criminal intent. It has been said that while
the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood
to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In
English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought"
are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is
not great;" the word "malice" not often being understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs.
428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be
committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from general principles it will always be
found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act.
Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this
doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In
controversies between private parties the quo animo with which a thing was done is sometimes important,
not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of
wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal
sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It
is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is
the wrongful intent, without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It
consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does
not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done
by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence
differs from civil. So also —
 Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or
exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the
result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame
ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In
times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice that where the mind is pure, he who differs in
act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems another to
deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a
person is made to suffer a punishment which the community deems not his due, so far from its placing an
evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the
want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the
plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering
one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first
in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice
result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no
man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of
necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of
certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing
these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention
of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and
beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the
rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental
principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law,
and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300,
and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to
be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here
is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability
provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the
accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the
question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect
which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent,
criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which
will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded,
if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he
mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and
with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of
reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If,
without fault or carelessness, he is misled concerning them, and defends himself correctly according to
 what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he
was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array
of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where a
man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief,
and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the
attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger
at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he
would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew
the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide
or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of
malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law"
in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the
code, that the "act punished by law" was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design against
him, and under that supposition killed him, although it should afterwards appear that there was no such
design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the
degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's
case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and
a pistol in his hand, and using violent menaces against his life as he advances. Having approached near
enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant
the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and
that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he
would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a
man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a
doctrine which would entirely take away the essential right of self-defense. And when it is considered that
the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his
apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set
out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of
his wife, without other light than reflected from the fire, and that the man with his back to the door was
attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or
two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took
from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow,
knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown
lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he
rendered assistance as soon as he learned his identity, and who died in about six days in consequence of
cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained
pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief
over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-
defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch
of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and
that there did not exists rational necessity for the employment of the force used, and in accordance with
 articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory
penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked,
struck, and beaten, without being able to distinguish with which they might have executed their criminal
intent, because of the there was no other than fire light in the room, and considering that in such a situation
and when the acts executed demonstrated that they might endanger his existence, and possibly that of his
wife and child, more especially because his assailant was unknown, he should have defended himself, and
in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense,
nor did he use means which were not rationally necessary, particularly because the instrument with which
he killed was the one which he took from his assailant, and was capable of producing death, and in the
darkness of the house and the consteration which naturally resulted from such strong aggression, it was not
given him to known or distinguish whether there was one or more assailants, nor the arms which they might
bear, not that which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did not apply
paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28,
1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city,
upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two
shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated
a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying
upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had
been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired
from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as
having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The
criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of
the requisites of said article, but not that of the reasonableness of the means employed to repel the attack,
and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the
circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting
justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone
thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and
is answered "the delivery of all of his money, otherwise his house would be burned" — because of which,
and observing in an alley adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot.
Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all
of the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to
exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correctional for the homicide committed. Upon
appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors,
who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just
self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck
the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping
room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the
property committed to his charge; that in view of all the circumstances, as they must have presented themselves to
the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no
more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would
have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been
guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means
adopted by him to defend himself from the imminent danger which he believe threatened his person and his property
and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.

Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief
of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty
by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison correccional and to indemnify jointly and
severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod
accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta,
and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office
of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping
containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the
instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise
called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he
answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of
police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and
failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into
two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida
Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place
and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately
returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and
Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they
were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and
killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson,
Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to
who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was
thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds
inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of
Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when
he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated
the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in
the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If
you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up
in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is
Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if
you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on
bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the
door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the
floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are
vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory.
Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking
up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to
sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed
Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still
lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of
the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and
corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson
was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both
appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was
still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson,
the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe
her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in
rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony
will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her
cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the
truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing
the findings of fact made by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door,
Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but
without having made previously any reasonable inquiry as to his identity. And the question is whether or not they
may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted
in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was
Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them
guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the
circumstances of the case, the crime committed by appellants is murder through specially mitigated by
circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah
Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed
without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by
someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at
that precise moment, he was struck by a chair which had been placed against the door and believing that he was then
being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-
mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night
and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He
was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was
loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there
is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or
opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but
to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case,
appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to
immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain
his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end
had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course
of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas
at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself
from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating
him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S.,
par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall
be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for
his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he
uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be
true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace
of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he
offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid
down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which
he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal
offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see
how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the
officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can
justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an
innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a
reasonably prudent man, condemnation — not condonation — should be the rule; otherwise we should offer a
premium to crime in the shelter of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident
of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se
celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar;
existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la
intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16),
and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered
as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance
of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person
incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office.
There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted
in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the
necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the
instance case, only the first requisite is present — appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their
duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are
overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in
the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from
him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code,
the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5)
years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay
the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs.

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

Adm. Case No. 3086 February 23, 1988

ALEXANDER PADILLA, complainant,

vs.
THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial Court of Pasay City Branch
113, respondent.

RESOLUTION

PER CURIAM:

This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of Customs, Alexander
Padilla, against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a manifestly
erroneous decision due, at the very least, to gross incompetence and gross ignorance of the law, in Criminal Case
No. 86- 10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting said accused of the offense charged,
i.e., smuggling of foreign currency out of the country.

Required by the Court to answer the complaint, the respondent judge filed an Answer, dated October 6, 1987,
reciting his "commendable record as a fearless prosecutor" since his appointment as Assistant City Fiscal of Manila
on December 4, 1962, until his appointment eventually as RTC Judge on February 18, 1983; that at in the
reorganization of the judiciary after the February 26, 1986 revolution, he was reappointed to his present position;
that his length of service as prosecutor and judge is "tangible proof that would negate the allegations of the
petitioner" (should be complainant), whereas the latter did not last long in the service for reasons only known to
him; that the decision involved in the complaint was promulgated by respondent on September 29, 1986, but the
complaint against him was filed only on August 6, 1987, a clear indication of malice and ill-will of the complainant
to subject respondent to harassment, humiliation and vindictiveness; that his decision, of which he submits a copy
(Annex A) as part of his Answer, is based on "fundamental principles and the foundation of rights and justice" and
that if there are mistakes or errors in the questioned decision, they are committed in good faith. Accordingly,
respondent prays for the dismissal of the petition (should be complaint).

The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or gross ignorance
of the law in rendering the decision in question. A judge can not be held to account or answer, criminally, civilly or
administratively, for an erroneous decision rendered by him in good faith.

The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who was caught by
a Customs guard at the Manila International Airport while attempting to smuggle foreign currency and foreign
exchange instruments out of the country. Lo Chi Fai, was apprehended by a customs guard and two PAFSECOM
officers on July 9, 1986, while on board Flight PR 300 of the Philippine Air Lines bound for Hongkong. At the time
of his apprehension, he was found carrying with him foreign currency and foreign exchange instruments (380
pieces) amounting to US$ 355,349.57, in various currency denominations, to wit: Japanese Yen, Swiss Franc,
Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, English Pound, Malaysian Dollar,
Deutsche Mark, Canadian Dollar and Hongkong Dollar, without any authority as provided by law. At the time the
accused was apprehended, he was able to exhibit two currency declarations which he was supposed to have
accomplished upon his arrival in Manila in previous trips, namely, CB Currency Declaration No. 05048, dated May
4, 1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346, dated June 29,
1986 for Japanese Yen 6,600,000.00.

An information was filed against Lo Chi Fai, with the RTC of Pasay City for violation of Sec. 6, Central Bank
Circular No. 960, as follows:

That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, Mr. LO CHI FAI, did
then and there wilfully, unlawfully and feloniously attempt to take out of the Philippines through
the Manila International Airport the following foreign currencies in cash and in checks:

Japanese Yen Y 32,800,000.00

Swiss Franc SW. FR 6,9000.00

Australian Dollar A$ 17,425.00

Singapore Dollar S$ 9,945.00

Deutsche Marck DM 18,595.00

Canadian Dollar CS 13,330.00

Hongkong Dollar HK$ 15,630.00

HFL Guilder HFL 430.00

French Franc F/6,860.00

US Dollar US$ 73,950.00

English Pound 5,318.00

Malaysian Dollar M$. 14,760.00

(in checks)

Australian Dollar A$ 7,750.00

British Pound 700.00

US Dollar US$ 17,630.00

Canadian Dollar C$ 990.00

 without authority from the Central Bank.

Contrary to Law.

The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to Branch 113, presided
by herein respondent Judge Baltazar A. Dizon.

Section 6 of Circular No. 960 of the Central Bank provides as follows:

Sec. 6. Export, import of foreign exchange; exceptions. — No person shall take out or transmit or
attempt to take out or transmit foreign exchange in any form, out of the Philippines directly,
through other persons, through the mails or through international carriers except when specifically
authorized by the Central Bank or allowed under existing international agreements or Central
Bank regulations.

Tourists and non-resident visitors may take out or send out from the Philippine foreign exchange
in amounts not exceeding such amounts of foreign exchange brought in by them. For purposes of
establishing the amount of foreign exchange brought in or out of the Philippines, tourists and non-
resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other
foreign currencies shall declare their foreign exchange in the form prescribed by the Central Bank
at points of entries upon arrival in the Philippines.

The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:

Section 1. Blackmarketing of Foreign Exchange .— That any person who shall engage in the
trading or purchase and sale of foreign currency in violation of existing laws or rules and
regulations of the Central Bank shall be guilty of the crime of blackmarketing of foreign exchange
and shall suffer the penalty of reclusion temporal, (minimum of 12 years and I day and maximum
of 20 years) and a fine of no less than fifty thousand (P50,000.00) Pesos.

At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong, engaged in the
garment business, in which he had invested 4 to 5 million Hongkong Dollars; that he had come to the Philippines 9
to 1 0 times, although the only dates he could remember were April 2, 1986, May 4, 1986, June 28,1986, and July 8,
1986; that the reason for his coming to the Philippines was to invest in business in the Philippines and also to play in
the casino; that he had a group of business associates who decided to invest in business with him, namely: Wakita
Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan, who had their own businesses in Japan
and Hongkong; that when he came to the Philippines on April 2,1986, he brought US$50,000.00 and 8,500,000.00
Japanese Yen which he tried to declare but the Central Bank representative refused to accept his declaration, until he
could get a confirmation as to the source of the money, for which reason he contacted his bank in Hongkong and a
telex was sent to him on April 3,1986 (Exh. 4). He also brought in with him US$39,000.00 and 4,000,000.00
Japanese Yen when he arrived on May 4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00
Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He also testified that his business associates, as per their
agreement to invest in some business with him in the Philippines, started putting their money for this purpose in a
common fund, hence, every time anyone of them came to the Philippines, they would declare the money they were
bringing in, and all declarations were handed to and kept by him; these currency declarations were presented at the
trial as exhibits for the defense. When asked by the court why he did not present all of these declarations when he
was apprehended at the airport, his answer was that he was not asked to present the declaration papers of his
associates, and besides, he does not understand English and he was not told to do so. He also testified on cross-
examination that the reason he was going back to Hongkong bringing with him all the money intended to be
invested in the Philippines was because of the fear of his group that the "revolution" taking place in Manila might
become widespread. It was because of this fear that he was urged by his associates to come to Manila on July 8,
1986 to bring the money out of the Philippines.

The respondent judge, in his decision acquitting the accused, stated:

 The factual issue for this Court to determine is whether or not the accused wilfully violated
Section 6 of Circular No. 960. The fact that the accused had in his possession the foreign
currencies when he was about to depart from the Philippines did not by that act alone make him
liable for Violation of Section 6.

What is imperative is the purpose for which the act of bringing foreign currencies out of the
country was done the very intention. It is that which qualifies the act as criminal or not. There
must be that clear intention to violate and benefit from the act done. Intent is a mental state, the
existence of which is shown by overt acts of a person.

The respondent proceeded to analyze the evidence which, according to him, tended to show that the accused had no
wilfull intention to violate the law. According to the respondent in his decision:

... this Court is persuaded to accept the explanation of the defense that the currencies confiscated
and/or seized from the accused belong to him and his business associates abovenamed. And from
the unwavering and unequivocal testimonies of Mr. Templo and all of currencies in question came
from abroad and not from the local source which is what is being prohibited by the government.
Yes, simply reading the provisions of said circular will, readily show that the currency declaration
is required for the purpose of establishing the amount of currency being brought by tourist or
temporary non-resident visitors into the country. The currency declarations, therefore, is already
(sic) intended to serve as a guideline for the Customs authorities to determine the amounts actually
brought in by them to correspond to the amounts that could be allowed to be taken out. Indeed,
this Court is amazed and really has its misgivings in the manner currency declarations were made
as testified to by the Central Bank employees. Why the Bureau of Customs representative never
took part in all these declarations testified to by no less than five (5) Central Bank employees?
Seemingly, these employees are the favorites of these travellers. It is the hope of this Court that
the authorities must do something to remedy the evident flaw in the system for effective
implementation of the questioned Central Bank Circular No. 960.

But even with a doubtful mind this Court would not be able to pin criminal responsibility on the
accused. This is due to its steadfast adherence and devotion to the rule of law-a factor in restoring
the almost lost faith and erosion of confidence of the people in the administration of justice.
Courts of Justice are guided only by the rule of evidence.

The respondent-judge has shown gross incompetence or gross ignorance of the law in holding that to convict the
accused for violation of Central Bank Circular No. 960, the prosecution must establish that the accused had the
criminal intent to violate the law. The respondent ought to know that proof of malice or deliberate intent (mens rea)
is not essential in offenses punished by special laws, which are mala prohibita. In requiring proof of malice, the
respondent has by his gross ignorance allowed the accused to go scot free. The accused at the time of his
apprehension at the Manila International Airport had in his possession the amount of US$355,349.57 in assorted
foreign currencies and foreign exchange instruments (380 pieces), without any specific authority from the Central
Bank as required by law. At the time of his apprehension, he was able to exhibit only two foreign currency
declarations in his possession. These were old declarations made by him on the occasion of his previous trips to the
Philippines.

Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank Circular No.
960, the respondent nonetheless chose to exonerate the accused based on his defense that the foreign currency he
was bringing out of the country at the time he was apprehended by the customs authorities were brought into the
Philippines by him and his alleged business associates on several previous occasions when they came to the
Philippines, supposedly to be used for the purpose of investing in some unspecified or undetermined business
ventures; that this money was kept in the Philippines and he precisely came to the Philippines to take the money out
as he and his alleged business associates were afraid that the "attempted revolution" which occurred on July 6,1986
might spread. Such fantastic tale, although totally irrelevant to the matter of the criminal liability of the accused
under the information, was swallowed by the respondent-judge "hook, line and sinker." It did not matter to the
respondent that the foreign currency and foreign currency instruments found in the possession of the accused when
he was apprehended at the airport-380 pieces in all-and the amounts of such foreign exchange did not correspond to
the foreign currency declarations presented by the accused at the trial. It did not matter to the respondent that the
accused by his own story admitted, in effect, that he was a carrier" of foreign currency for other people. The
respondent closed his eyes to the fact that the very substantial amounts of foreign exchange found in the possession
of the accused at the time of his apprehension consisted of personal checks of other people, as well as cash in
various currency denominations (12 kinds of currency in all), which clearly belied the claim of the accused that they
were part of the funds which he and his supposed associates had brought in and kept in the Philippines for the
purpose of investing in some business ventures. The respondent ignored the fact that most of the CB Currency
declarations presented by the defense at the trial were declarations belonging to other people which could not be
utilized by the accused to justify his having the foreign exchange in his possession. Although contrary to ordinary
human experience and behavior, the respondent judge chose to give credence to the fantastic tale of the accused that
he and his alleged business associates had brought in from time to time and accumulated and kept in the Philippines
foreign exchange (of very substantial amounts in cash and checks in various foreign currency denominations) for the
purpose of investing in business even before they knew and had come to an agreement as to the specific business
venture in which they were going to invest. These and other circumstances which make the story concocted by the
accused so palpably unbelievable as to render the findings of the respondent judge obviously contrived to favor the
acquittal of the accused, thereby clearly negating his claim that he rendered the decision "in good faith." His
actuations in this case amount to grave misconduct prejudicial to the interest of sound and fair administration of
justice.

He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused of at least the
amount of US$3,000.00, allowed, according to respondent, under Central Bank Circular No. 960. This, in spite of
the fact that forfeiture proceedings had already been instituted by the Bureau of Customs over the currency listed in
the information, which according to the respondent should be respected since the Bureau of Customs "has the
exclusive jurisdiction in the matter of seizure and forfeiture of the property involved in the alleged infringements of
the aforesaid Central Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the release of US$
3,000.00 to the accused, the respondent judge again displayed gross incompetence and gross ignorance of the law.
There is nothing in the said CB Circular which could be taken as authority for the trial court to release the said
amount of U.S. Currency to the accused. According to the above-cited CB Circular, tourists may take out or send out
from the Philippines foreign exchange in amounts not exceeding such amounts of foreign exchange brought in by
them; for the purpose of establishing such amount, tourists or non-resident temporary visitors bringing with them
more than US$3,000.00 or its equivalent in other foreign currencies must declare their foreign exchange at points of
entries upon arrival in the Philippines. In other words, CB Circular No. 960 merely provides that for the purpose of
establishing the amount of foreign currency brought in or out of the Philippines, a tourist upon arrival is required to
declare any foreign exchange he is bringing in at the time of his arrival, if the same exceeds the amount of
US$3,000.00 or its equivalent in other foreign currencies. There is nothing in said circular that would justify
returning to him the amount of at least US$3,000.00, if he is caught attempting to bring out foreign exchange in
excess of said amount without specific authority from the Central Bank.

Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of gross
incompetence, gross ignorance of the law and grave and serious misconduct affecting his integrity and efficiency,
and consistent with the responsibility of this Court for the just and proper administration of justice and for the
attainment of the objective of maintaining the people's faith in the judiciary (People vs. Valenzuela, 135 SCRA 712),
it is hereby ordered that the Respondent Judge be DISMISSED from the service. All leave and retirement benefits
and privileges to which he may be entitled are hereby forfeited with prejudice to his being reinstated in any branch
of government service, including government-owned and/or controlled agencies or corporations.

This resolution is immediately executory.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 96132 June 26, 1992

ORIEL MAGNO, petitioner,

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

PARAS, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the respondent
Court of Appeals which affirmed in toto the decision of the Regional Trial Court of Quezon City, Branch 104
finding the accused petitioner, guilty of violations of Batas Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696
before they were elevated on appeal to the respondent appellate Court under CA-G.R. CR No. 04889.

The antecedent facts and circumstances of the four (4) counts of the offense charged, have been clearly illustrated, in
the Comment of the Office of the Solicitor General as official counsel for the public respondent, thus:

Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not have complete
equipment that could make his venture workable. He also had another problem, and that while he was going into this
entrepreneurship, he lacked funds with which to purchase the necessary equipment to make such business
operational. Thus, petitioner, representing Ultra Sources International Corporation, approached Corazon Teng,
(private complainant) Vice President of Mancor Industries (hereinafter referred to as Mancor) for his needed car
repair service equipment of which Mancor was a distributor, (Rollo, pp. 40-41)

Having been approached by petitioner on his predicament, who fully bared that he had no sufficient funds to buy the
equipment needed, the former (Corazon Teng) referred Magno to LS Finance and Management Corporation (LB
Finance for brevity) advising its Vice-President, Joey Gomez, that Mancor was willing and able to supply the pieces
of equipment needed if LS Finance could accommodate petitioner and provide him credit facilities. (Ibid., P. 41)

The arrangement went through on condition that petitioner has to put up a warranty deposit equivalent to thirty per
centum (30%) of the total value of the pieces of equipment to be purchased, amounting to P29,790.00. Since
petitioner could not come up with such amount, he requested Joey Gomez on a personal level to look for a third
party who could lend him the equivalent amount of the warranty deposit, however, unknown to petitioner, it was
Corazon Teng who advanced the deposit in question, on condition that the same would be paid as a short term loan
at 3% interest (Ibid., P. 41)

The specific provision in the Leasing Agreement, reads:

 1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the Lessee
shall deposit with the Lessor such sum or sums specified in Schedule A to serve as security for the
faithful performance of its obligations.

This deposit shall be refunded to the Lessee upon the satisfactory completion of the entire period
of Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p. 17)

As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS Finance would
lease the garage equipments and petitioner would pay the corresponding rent with the option to buy the same. After
the documentation was completed, the equipment were delivered to petitioner who in turn issued a postdated check
and gave it to Joey Gomez who, unknown to the petitioner, delivered the same to Corazon Teng. When the check
matured, Petitioner requested through Joey Gomez not to deposit the check as he (Magno) was no longer banking
with Pacific Bank.

To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2) checks dated July
29, 1983 were deposited and cleared while the four (4) others, which were the subject of the four counts of the
aforestated charges subject of the petition, were held momentarily by Corazon Teng, on the request of Magno as
they were not covered with sufficient funds. These checks were a) Piso Bank Check Nos. 006858, dated August 15,
1983, 006859 dated August 28, 1983 and 006860 dated September 15, 1983, all in the amount of P5,038.43 and No.
006861 dated September 28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).

Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage equipments. It
was then on this occasion that petitioner became aware that Corazon Teng was the one who advanced the warranty
deposit. Petitioner with his wife went to see Corazon Teng and promised to pay the latter but the payment never
came and when the four (4) checks were deposited they were returned for the reason "account closed." (Ibid., p. 43)

After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner was convicted
for violations of BP Blg. 22 on the four (4) cases, as follows:

. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of violations of
B.P. Blg. 22 and sentencing the accused to imprisonment for one year in each Criminal Case Nos.
Q-35693, Q-35695 and Q-35696 and to pay to complainant the respective amounts reflected in
subject checks. (Ibid., pp. 25, 27)

Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is intrigued
about the outcome of the checks subject of the cases which were intended by the parties, the petitioner on the one
hand and the private complainant on the other, to cover the "warranty deposit" equivalent to the 30% requirement of
the financing company. Corazon Teng is one of the officers of Mancor, the supplier of the equipment subject of the
Leasing Agreement subject of the high financing scheme undertaken by the petitioner as lessee of the repair service
equipment, which was arranged at the instance of Mrs. Teng from the very beginning of the transaction.

By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the "purchase/lease"
value of the equipments subject of the transaction, it is obvious that the "cash out" made by Mrs. Teng was not used
by petitioner who was just paying rentals for the equipment. It would have been different if petitioner opted to
purchase the pieces of equipment on or about the termination of the lease-purchase agreement in which case he had
to pay the additional amount of the warranty deposit which should have formed part of the purchase price. As the
transaction did not ripen into a purchase, but remained a lease with rentals being paid for the loaned equipment,
which were pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to
economic constraints or business failure, then it is lawful and just that the warranty deposit should not be charged
against the petitioner.

To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not his own
account, it having remained with LS Finance, is to even make him pay an unjust "debt", to say the least, since
petitioner did not receive the amount in question. All the while, said amount was in the safekeeping of the financing
company, which is managed, supervised and operated by the corporation officials and employees of LS Finance.
Petitioner did not even know that the checks he issued were turned over by Joey Gomez to Mrs. Teng, whose
operation was kept from his knowledge on her instruction. This fact alone evoke suspicion that the transaction is
irregular and immoral per se, hence, she specifically requested Gomez not to divulge the source of the "warranty
deposit".

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who "accommodated"
petitioner's request for Joey Gomez, to source out the needed funds for the "warranty deposit". Thus it unfolds the
kind of transaction that is shrouded with mystery, gimmickry and doubtful legality. It is in simple language, a
scheme whereby Mrs. Teng as the supplier of the equipment in the name of her corporation, Mancor, would be able
to "sell or lease" its goods as in this case, and at the same time, privately financing those who desperately need petty
accommodations as this one. This modus operandi has in so many instances victimized unsuspecting businessmen,
who likewise need protection from the law, by availing of the deceptively called "warranty deposit" not realizing
that they also fall prey to leasing equipment under the guise of a lease-purchase agreement when it is a scheme
designed to skim off business clients.

This maneuvering has serious implications especially with respect to the threat of the penal sanction of the law in
issue, as in this case. And, with a willing court system to apply the full harshness of the special law in question,
using the "mala prohibitia" doctrine, the noble objective of the law is tainted with materialism and opportunism in
the highest, degree.

This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease agreement knew
that the amount of P29,790.00 subject of the cases, were mere accommodation-arrangements with somebody thru
Joey Gomez, petitioner did not even attempt to secure the refund of said amount from LS Finance, notwithstanding
the agreement provision to the contrary. To argue that after the termination of the lease agreement, the warranty
deposit should be refundable in full to Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for
his official or personal use, is to stretch the nicety of the alleged law (B.P. No, 22) violated.

For all intents and purposes, the law was devised to safeguard the interest of the banking system and the legitimate
public checking account user. It did not intend to shelter or favor nor encourage users of the system to enrich
themselves through manipulations and circumvention of the noble purpose and objective of the law. Least should it
be used also as a means of jeopardizing honest-to-goodness transactions with some color of "get-rich" scheme to the
prejudice of well-meaning businessmen who are the pillars of society.

Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function of
punishment is the protective (sic) of society against actual and potential wrongdoers." It is not clear whether
petitioner could be considered as having actually committed the wrong sought to be punished in the offense charged,
but on the other hand, it can be safely said that the actuations of Mrs. Carolina Teng amount to that of potential
wrongdoers whose operations should also be clipped at some point in time in order that the unwary public will not
be failing prey to such a vicious transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)

Corollary to the above view, is the application of the theory that "criminal law is founded upon that moral
disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society. This disappropriation is inevitable to the extent that
morality is generally founded and built upon a certain concurrence in the moral opinions of all. . . . That which we
call punishment is only an external means of emphasizing moral disapprobation the method of punishment is in
reality the amount of punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also
Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).

Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the objective of
retribution of a wronged society, should be directed against the "actual and potential wrongdoers." In the instant
case, there is no doubt that petitioner's four (4) checks were used to collateralize an accommodation, and not to
cover the receipt of an actual "account or credit for value" as this was absent, and therefore petitioner should not be
punished for mere issuance of the checks in question. Following the aforecited theory, in petitioner's stead the
"potential wrongdoer", whose operation could be a menace to society, should not be glorified by convicting the
petitioner.

While in case of doubt, the case should have been resolved in favor of the accused, however, by the open admission
of the appellate court below, oven when the ultimate beneficiary of the "warranty deposit" is of doubtful certainty,
the accused was convicted, as shown below:

Nor do We see any merit in appellant's claim that the obligation of the accused to complainant had
been extinguished by the termination of the leasing agreement — by the terms of which the
warranty deposit advanced by complainant was refundable to the accused as lessee — and that as
the lessor L.S. Finance neither made any liquidation of said amount nor returned the same to the
accused, it may he assumed that the amount was already returned to the complainant. For these
allegations, even if true, do not change the fact, admitted by appellant and established by the
evidence, that the four checks were originally issued on account or for value. And as We have
already observed, in order that there may be a conviction under the from paragraph of Section 2 of
B.P. Blg 22 — with respect to the element of said offense that the check should have been made
and issued on account or for value — it is sufficient, all the other elements of the offense being
present, that the check must have been drawn and issued in payment of an obligation.

Moreover, even granting, arguendo, that the extinguishment, after the issuance of the checks, of
the obligation in consideration of which the checks were issued, would have resulted in placing
the case at bar beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is no
satisfactory proof that there was such an extinguishment in the present case. Appellee aptly points
out that appellant had not adduced any direct evidence to prove that the amount advanced by the
complainant to cover the warranty deposit must already have been returned to her. (Rollo, p. 30)

It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the accused is presumed
innocent until proven guilty beyond reasonable doubt. On the contrary, the same court even expected the petitioner-
appellant to adduce evidence to show that he was not guilty of the crime charged. But how can be produce
documents showing that the warranty deposit has already been taken back by Mrs. Teng when she is an officer of
Mancor which has interest in the transaction, besides being personally interested in the profit of her side-line. Thus,
even if she may have gotten back the value of the accommodation, she would still pursue collecting from the
petitioner since she had in her possession the checks that "bounced".

That the court a quo merely relied on the law, without looking into the real nature of the warranty deposit is evident
from the following pronouncement:

And the trail court concluded that there is no question that the accused violated BP Blg. 22, which
is a special statutory law, violations of which are mala prohibita. The court relied on the rule that
in cases ofmala prohibita, the only inquiry is whether or not the law had been violated, proof of
criminal intent not being necessary for the conviction of the accused, the acts being prohibited for
reasons of public policy and the defenses of good faith and absence of criminal intent being
unavailing in prosecutions for said offenses." (Ibid., p. 26)

The crux of the matter rests upon the reason for the drawing of the postdated checks by the petitioner, i.e., whether
they were drawn or issued "to apply on account or for value", as required under Section 1 of B.P. Blg, 22. When
viewed against the following definitions of the catch-terms "warranty" and "deposit", for which the postdated checks
were issued or drawn, all the more, the alleged crime could not have been committed by petitioner:

a) Warranty — A promise that a proposition of fact is true. A promise that certain facts are truly as
they are represented to be and that they will remain so: . . . (Black's Law Dictionary, Fifth Edition,
(1979) p. 1423)

A cross-reference to the following term shows:

 Fitness for Particular Purpose: —

Where the seller at the time of contracting has reason to know any particular purpose for which the
goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish
suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be
fit for such purpose, (Ibid., p. 573)

b) Deposit: — Money lodged with a person as an earnest or security for the performance of some
contract, to be forfeited if the depositor fails in his undertaking. It may be deemed to be part
payment and to that extent may constitute the purchaser the actual owner of the estate.

To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as a pledge to
intrust to the care of another.

The act of placing money in the custody of a bank or banker, for safety or convenience, to be
withdrawn at the will of the depositor or under rules and regulations agreed on. Also, the money
so deposited, or the credit which the depositor receives for it. Deposit, according to its commonly
accepted and generally understood among bankers and by the public, includes not only deposits
payable on demand and for which certificates, whether interest-bearing or not, may be issued,
payable on demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-395)

Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by
the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason . . . is
inversely applied in this case. From the very beginning, petitioner never hid the fact that he did not have the funds
with which to put up the warranty deposit and as a matter of fact, he openly intimated this to the vital conduit of the
transaction, Joey Gomez, to whom petitioner was introduced by Mrs. Teng. It would have been different if this
predicament was not communicated to all the parties he dealt with regarding the lease agreement the financing of
which was covered by L.S. Finance Management.

WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby ACQUITTED of the
crime charged.

SO ORDERED.
 THIRD DIVISION

G.R. No. 157171 March 14, 2006

ARSENIA B. GARCIA, Petitioner,

vs.
HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents

DECISION

QUISUMBING, J.:

This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR No. 245471that affirmed the
conviction of petitioner by the Regional Trial Court2of Alaminos City, Pangasinan, Branch 54, for violation of
Section 27(b) of Republic Act No. 6646.3

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial elections, an
information dated March 30, 1998, was filed in the Regional Trial Court of Alaminos, charging Herminio R.
Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with violation of Section 27(b). The
information reads:

That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995 elections, in the
Municipality of Alaminos, Province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, Election Officer Arsenia B. Garcia, Municipal Treasurer Herminio R. Romero, Public
School District Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-Secretary, respectively, of the
Municipal Board of Canvassers of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de Vera,
conspiring with, confederating together and mutually helping each other, did, then and there, willfully, and
unlawfully decrease[d] the votes received by senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand nine
hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes in the one hundred fifty-nine
(159) precincts of the Statement of Votes by Precincts of said municipality, with Serial Nos. 008417, 008418,
008419, 008420, 008421, 008422 and 008423 to one thousand nine hundred twenty-one (1,921) votes as reflected in
the Statement of Votes by Precincts with Serial No. 008423 and Certificate of Canvass with Serial No. 436156 with
a difference of five thousand seventy-seven (5,077) votes.

CONTRARY TO LAW.4

In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of evidence, except
petitioner who was convicted as follows:

xxx

5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her GUILTY beyond reasonable doubt, of
the crime defined under Republic Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total
of 5,034 and in relation to BP Blg. 881, considering that this finding is a violation of Election Offense, she is thus
sentenced to suffer an imprisonment of SIX (6) YEARS as maximum, but applying the INDETERMINATE
SENTENCE LAW, the minimum penalty is the next degree lower which is SIX (6) MONTHS; however, accused
Arsenia B. Garcia is not entitled to probation; further, she is sentenced to suffer disqualification to hold public office
and she is also deprived of her right of suffrage.

The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to commit her person
to the Bureau of Correctional Institution for Women, at Metro Manila, until further orders from the court.

No pronouncement as to costs.

IT IS SO ORDERED.5

Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision, thus,

WHEREFORE, foregoing considered, the appealed decision is hereby affirmed with modification, increasing the
minimum penalty imposed by the trial court from six (6) months to one (1) year.

SO ORDERED.6

The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning the following as
errors of the appellate court:

ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT, NAMELY,
THAT IT COULD NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF
COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT THE PETITIONER DICTATED, AND
THAT IT COULD NOT HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE
WHO READ THE ADDING [MACHINE] TAPE.

II

ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES DURING THE
TRIAL BECAUSE IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER.

III

ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED THE
REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY
WAS THAT OF THE SECRETARY OF THE BOARD.

IV

THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT WILLFUL OR
INTENTIONAL.7

Petitioner contends that (1) the Court of Appeals’ judgment is erroneous, based on speculations, surmises and
conjectures, instead of substantial evidence; and (2) there was no motive on her part to reduce the votes of private
complainant.

Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which
falls under the class of mala prohibita.
The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala
prohibita? Could good faith and lack of criminal intent be valid defenses?

Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts complained of
are inherently immoral, they are deemed mala in se, even if they are punished by a special law.8Accordingly,
criminal intent must be clearly established with the other elements of the crime; otherwise, no crime is committed.
On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but become
punishable only because the law says they are forbidden. With these crimes, the sole issue is whether the law has
been violated.9Criminal intent is not necessary where the acts are prohibited for reasons of public policy. 10

Section 27(b) of Republic Act No. 664611provides:

SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in Sections 261 and
262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense:

xxx

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the
votes received by a candidate in any election or any member of the board who refuses, after proper verification and
hearing, to credit the correct votes or deduct such tampered votes.

xxx

Clearly, the acts prohibited in Section 27(b) are mala in se.12For otherwise, even errors and mistakes committed due
to overwork and fatigue would be punishable. Given the volume of votes to be counted and canvassed within a
limited amount of time, errors and miscalculations are bound to happen. And it could not be the intent of the law to
punish unintentional election canvass errors. However, intentionally increasing or decreasing the number of votes
received by a candidate is inherently immoral, since it is done with malice and intent to injure another.

Criminal intent is presumed to exist on the part of the person who executes an act which the law punishes, unless the
contrary shall appear.13Thus, whoever invokes good faith as a defense has the burden of proving its existence.

Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the Municipality of
Alaminos, Pangasinan was conducted as follows:

1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results thereof were
sealed and forwarded to the Municipal Board of Canvassers for canvassing;

2. The number of votes received by each candidate in each precinct was then recorded in the Statement of
Votes with appellant, in her capacity as Chairman, reading the figures appearing in the results from the
precincts and accused Viray, in his capacity as secretary of the Board, entering the number in the
Statements of Votes as read by the appellant. Six Statements of Votes were filled up to reflect the votes
received by each candidate in the 159 precincts of the Municipality of Alaminos, Pangasinan.

3. After the number of votes received by each candidate for each precincts were entered by accused Viray
in the Statements of Votes, these votes were added by the accused Palisoc and de Vera with the use of
electrical adding machines.

4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes were handed to
appellant who reads the subtotal of votes received by each candidate in the precincts listed in each
Statement of Votes. Accused Viray [then] records the subtotal in the proper column in the Statement of
Votes.
 5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de Vera added all
the subtotals appearing in all Statement of Votes.

6. After the computation, the corresponding machine tape on which the grand total was reflected was
handed to appellant who reads the same and accused Viray enters the figure read by appellant in the
column for grand total in the Statement of Votes.14

Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each precinct, nor of the
number of votes entered as subtotals of votes received in the precincts listed in SOV Nos. 008417 to 008422 was
raised as an issue.

At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at the grand total
of votes received by each candidate for all 159 precincts in SOV No. 008423. 15The grand total of the votes for
private complainant, Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or 5,000 votes less than the
number of votes private complainant actually received. This error is also evident in the Certificate of Canvass
(COC) No. 436156 signed by petitioner, Viray and Romero. 16

During trial of this case, petitioner admitted that she was indeed the one who announced the figure of 1,921, which
was subsequently entered by then accused Viray in his capacity as secretary of the board. 17Petitioner likewise
admitted that she was the one who prepared the COC (Exhibit A-7), though it was not her duty. To our mind,
preparing the COC even if it was not her task, manifests an intention to perpetuate the erroneous entry in the COC. 18

Neither can this Court accept petitioner’s explanation that the Board of Canvassers had no idea how the SOV
(Exhibit "6") and the COC reflected that private complainant had only 1,921 votes instead of 6,921 votes. As
chairman of the Municipal Board of Canvassers, petitioner’s concern was to assure accurate, correct and authentic
entry of the votes. Her failure to exercise maximum efficiency and fidelity to her trust deserves not only censure but
also the concomitant sanctions as a matter of criminal responsibility pursuant to the dictates of the law. 19

The fact that the number of votes deducted from the actual votes received by private complainant, Sen. Aquilino
Pimentel, Jr. was not added to any senatorial candidate does not relieve petitioner of liability under Section 27(b) of
Rep. Act No. 6646. The mere decreasing of the votes received by a candidate in an election is already punishable
under the said provision.20

At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The Court has
consistently held that factual findings of the trial court, as well as of the Court of Appeals are final and conclusive
and may not be reviewed on appeal, particularly where the findings of both the trial court and the appellate court on
the matter coincide.21

Public policy dictates that extraordinary diligence should be exercised by the members of the board of canvassers in
canvassing the results of the elections. Any error on their part would result in the disenfranchisement of the voters.
The Certificate of Canvass for senatorial candidates and its supporting statements of votes prepared by the municipal
board of canvassers are sensitive election documents whose entries must be thoroughly scrutinized.22

In our review, the votes in the SOV should total 6,998. 23

As between the grand total of votes alleged to have been received by private complainant of 6,921 votes and
statement of his actual votes received of 6,998 is a difference of 77 votes. The discrepancy may be validly attributed
to mistake or error due to fatigue. However, a decrease of 5,000 votes as reflected in the Statement of Votes and
Certificate of Canvass is substantial, it cannot be allowed to remain on record unchallenged, especially when the
error results from the mere transfer of totals from one document to another.
WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining
petitioner’s conviction but increasing the minimum penalty in her sentence to one year instead of six months
is AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-74324 November 17, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y
MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First
Instance (now Regional Trial Court) of Cavite, under an information which reads as follows:

That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of
Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping and assisting one another, with treachery and
evident premeditation, taking advantage of their superior strength, and with the decided purpose to
kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire
did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani
Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the
aforenamed Bayani Miranda.

That the crime was committed with the qualifying circumstance of treachery and the aggravating
circumstances of evident premeditation and superior strength, and the means employed was to
weaken the defense; that the wrong done in the commission of the crime was deliberately
augmented by causing another wrong, that is the burning of the body of Bayani Miranda.

CONTRARY TO LAW (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a
decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the
mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as
follows:

WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are
pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of
murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance
in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision
mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to
suffer the penalty of reclusion perpetua together with the accessories of the law for both of them.
The accused are solidarily held liable to indemnify the heirs of the victim in the amount of
P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00.

Let the preventive imprisonment of Pugay be deducted from the principal penalty.

Cost against both accused.

SO ORDERED (p. 248, Records).

Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors
committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-

APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE
ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE
CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE
PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE

TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS
ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for
Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public
plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book
with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons
appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started
making fun of him. They made the deceased dance by tickling him with a piece of wood.

Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from
under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do
so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire
making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around
also poured sand on the burning body and others wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the
Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the
dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought
Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer
Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The
two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of
the decision of the court a quo to be without merit.

It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the
police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased
believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused
Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the
person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of
eyewitness Gabion in the commission of the offense.

While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were
extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also
engaged in a concerted effort to lay the blame on Gabion for the commission of the offense.

Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the
decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the
decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's
straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving
and unrealiable testimonies of Pugay and Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident.
They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented
as an eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises
the presumption that their testimonies would be adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears
on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging
the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the
accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the
information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not
give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does
not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil.
797).<äre||anº•1àw> Besides, the matter as to whom to utilize as witness is for the prosecution to decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter
requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability
but also because his testimony that he was reading a comic book during an unusual event is contrary to human
behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth
about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the
latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his
friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with
Gabion. Clearly, Gabion had no reason to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased
and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-
examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and
that it was only when the victim's body was on fire that he noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

Q. Mr. Gabion, you told the Court on cross-examination that you were reading
comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted
by Samson. How could you possibly see that incident while you were reading
comics?

A. I put down the comics which I am reading and I saw what they were doing.

Q. According to you also before Bayani was poured with gasoline and lighted
and burned later you had a talk with Pugay, is that correct?

A. When he was pouring gasoline on Bayani Miranda I was trying to prevent

him from doing so.

Q. We want to clarify. According to you a while ago you had a talk with Pugay
and as a matter of fact, you told him not to pour gasoline. That is what I want to
know from you, if that is true?

A. Yes, sir.

Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say
you come to know that Pugay will pour gasoline unto him?

A. I do not know that would be that incident.

Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did
that actually?

A. Because I pity Bayani, sir.

Q. When you saw Pugay tickling Bayani with a stick on his ass you tried
according to you to ask him not to and then later you said you asked not to pour
gasoline. Did Pugay tell you he was going to pour gasoline on Bayani?

A. I was not told, sir.

Q. Did you come to know..... how did you come to know he was going to pour
gasoline that is why you prevent him?

A. Because he was holding on a container of gasoline. I thought it was water but

it was gasoline.

Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he
later got hold of a can of gasoline, is that correct?

A. Yes, sir.
 Q. And when he pick up the can of gasoline, was that the time you told him not
to pour gasoline when he merely pick up the can of gasoline.

A. I saw him pouring the gasoline on the body of Joe.

Q. So, it is clear when you told Pugay not to pour gasoline he was already in the
process of pouring gasoline on the body of Bayani?

A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading
when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from
under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body
of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose
and intention between the two accused-appellants immediately before the commission of the crime. There was no
animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was
accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence,
the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased
is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et.
al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from
under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this
accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped
his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every
undesirable consequence arising from any act that may be committed by his companions who at the time were
making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through
reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14
Phil. 468, 470, this Court ruled as follows:

A man must use common sense and exercise due reflection in all his acts; it is his duty to be
cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He
is responsible for such results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his own person, rights and property, all
those of his fellow-beings, would ever be exposed to all manner of danger and injury.

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months
of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With
respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper
considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is
characterized by treachery as the victim was left completely helpless to defend and protect himself against such an
outrage" (p. 57, Rollo). We do not agree.

There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before
the incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making
that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed
means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from any defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased
was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it
were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely
intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility.
Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony
defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he
must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be
incurred by any person committing a felony (delito) although the wrongful act done be different from that which he
intended.

As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is
only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended.
We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a
wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness
Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn,
June 1, 1983, pp. 16-17).<äre||anº•1àw>

The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years
of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his
hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the
deceased Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages
and P5,000.00 as exemplary damages as found by the court a quo.

Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172716 November 17, 2010

JASON IVLER y AGUILAR, Petitioner,

vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court, Branch 71,
Pasig City, and EVANGELINE PONCE, Respondents.

DECISION

CARPIO, J.:

The Case

The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-silencio a
lower court’s ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution for Reckless
Imprudence Resulting in Homicide and Damage to Property. This, despite the accused’s previous conviction for
Reckless Imprudence Resulting in Slight Physical Injuries arising from the same incident grounding the second
prosecution.

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the
Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence
Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L.
Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal
Case No. 82366) for the death of respondent Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s
vehicle. Petitioner posted bail for his temporary release in both cases.

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the
penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No.
82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence.

The MeTC refused quashal, finding no identity of offenses in the two cases. 3

After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of Pasig
City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC
the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking
S.C.A. No. 2803 as a prejudicial question. Without acting on petitioner’s motion, the MeTC proceeded with the
arraignment and, because of petitioner’s absence, cancelled his bail and ordered his arrest. 4 Seven days later, the
MeTC issued a resolution denying petitioner’s motion to suspend proceedings and postponing his arraignment until
after his arrest.5 Petitioner sought reconsideration but as of the filing of this petition, the motion remained
unresolved.

Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A. No. 2803
for petitioner’s loss of standing to maintain the suit. Petitioner contested the motion.

The Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on
petitioner’s forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC’s order to arrest petitioner for
his non-appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No.
2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but this proved unavailing. 6

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego
participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line of
jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the RTC was a
special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction.7

Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A. 2803. Invoking jurisprudence,
petitioner argues that his constitutional right not to be placed twice in jeopardy of punishment for the same offense
bars his prosecution in Criminal Case No. 82366, having been previously convicted in Criminal Case No. 82367 for
the same offense of reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple
consequences of such crime are material only to determine his penalty.

Respondent Ponce finds no reason for the Court to disturb the RTC’s decision forfeiting petitioner’s standing to
maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court’s attention to jurisprudence
holding that light offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the Revised Penal
Code with grave or less grave felonies (e.g. homicide). Hence, the prosecution was obliged to separate the charge in
Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and
damage to property.

In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s motion not to file a comment to
the petition as the public respondent judge is merely a nominal party and private respondent is represented by
counsel.

The Issues

Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in S.C.A. 2803
when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal Case No. 82366;
and (2) if in the negative, whether petitioner’s constitutional right under the Double Jeopardy Clause bars further
proceedings in Criminal Case No. 82366.

The Ruling of the Court

We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case No. 82366 did not divest him of
personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the Constitution shielding
petitioner from prosecutions placing him in jeopardy of second punishment for the same offense bars further
proceedings in Criminal Case No. 82366.

Petitioner’s Non-appearance at the Arraignment in

Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803

Dismissals of appeals grounded on the appellant’s escape from custody or violation of the terms of his bail bond are
governed by the second paragraph of Section 8, Rule 124, 8 in relation to Section 1, Rule 125, of the Revised Rules
on Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon motion of the appellee or motu
proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign
country during the pendency of the appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review
judgments of convictions.

The RTC’s dismissal of petitioner’s special civil action for certiorari to review a pre-arraignment ancillary question
on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis under
procedural rules and jurisprudence. The RTC’s reliance on People v. Esparas9 undercuts the cogency of its ruling
because Esparas stands for a proposition contrary to the RTC’s ruling. There, the Court granted review to an appeal
by an accused who was sentenced to death for importing prohibited drugs even though she jumped bail pending trial
and was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of death sentences
under Republic Act No. 7659 as an exception to Section 8 of Rule 124. 10

The mischief in the RTC’s treatment of petitioner’s non-appearance at his arraignment in Criminal Case No. 82366
as proof of his loss of standing becomes more evident when one considers the Rules of Court’s treatment of a
defendant who absents himself from post-arraignment hearings. Under Section 21, Rule 114 11 of the Revised Rules
of Criminal Procedure, the defendant’s absence merely renders his bondsman potentially liable on its bond (subject
to cancellation should the bondsman fail to produce the accused within 30 days); the defendant retains his standing
and, should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the 30-day
period granted to the bondsman to produce the accused underscores the fact that mere non-appearance does not ipso
facto convert the accused’s status to that of a fugitive without standing.

Further, the RTC’s observation that petitioner provided "no explanation why he failed to attend the scheduled
proceeding"12 at the MeTC is belied by the records. Days before the arraignment, petitioner sought the suspension of
the MeTC’s proceedings in Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803.
Following the MeTC’s refusal to defer arraignment (the order for which was released days after the MeTC ordered
petitioner’s arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this
petition.

Petitioner’s Conviction in Criminal Case No. 82367

Bars his Prosecution in Criminal Case No. 82366

The accused’s negative constitutional right not to be "twice put in jeopardy of punishment for the same
offense"13protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict
rendered by a court of competent jurisdiction upon a valid information.14 It is not disputed that petitioner’s
conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid charge. Thus,
the case turns on the question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same
offense." Petitioner adopts the affirmative view, submitting that the two cases concern the same offense of reckless
imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is
an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property "as the
[latter] requires proof of an additional fact which the other does not."15

We find for petitioner.

 Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty

The two charges against petitioner, arising from the same facts, were prosecuted under the same provision of the
Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-offenses. The text of the
provision reads:

Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to
prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto
mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty
of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the property of another,
the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times
such value, but which shall in no case be less than twenty-five pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence
or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules
prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided in the first two
paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that
which should be imposed in the period which they may deem proper to apply.

2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall
be caused, in which case the defendant shall be punished by prision correccional in its medium and
maximum periods.

Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material
damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform
such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and
other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be
caused is not immediate nor the danger clearly manifest.

The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails
to lend on the spot to the injured parties such help as may be in this hand to give.

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties attached to the
quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty scheme for either or both
quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing penalties (paragraph 5); and
(4) the definition of "reckless imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses
penalize "the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible,"16 unlike willful offenses which punish the intentional criminal act. These structural and
conceptual features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of
Book II of the Revised Penal Code, as amended.

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined
and penalized under the framework of our penal laws, is nothing new. As early as the middle of the last century, we
already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the
proposition that "reckless imprudence is not a crime in itself but simply a way of committing it x x x" 17 on three
points of analysis: (1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative
intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating circumstance of
minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime in itself
but simply a way of committing it and merely determines a lower degree of criminal liability is too broad to deserve
unqualified assent. There are crimes that by their structure cannot be committed through imprudence: murder,
treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a
mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or
terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally
penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible. x x x x

Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty
therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit
so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding
penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each
penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead,
our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision
correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the
latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual
penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole
class, or series, of crimes.18 (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes is to state that their commission results in
damage, either to person or property.19

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage to
Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious Mischief, an
intentional crime conceptually incompatible with the element of imprudence obtaining in quasi-crimes.

Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since repeatedly
reiterated,21 stands on solid conceptual foundation. The contrary doctrinal pronouncement in People v. Faller 22 that
"[r]eckless impudence is not a crime in itself x x x [but] simply a way of committing it x x x,"23 has long been
abandoned when the Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller
in 1939. Quizon rejected Faller’s conceptualization of quasi-crimes by holding that quasi-crimes under Article 365
are distinct species of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon
jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of criminal law
rules defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal
Code which, as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian
conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to
quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction or
acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or omission upon
which the second prosecution was based.
 Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to
commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the
same quasi-offense, regardless of its various resulting acts, undergirded this Court’s unbroken chain of jurisprudence
on double jeopardy as applied to Article 365 starting with People v. Diaz,25 decided in 1954. There, a full Court,
speaking through Mr. Justice Montemayor, ordered the dismissal of a case for "damage to property thru reckless
imprudence" because a prior case against the same accused for "reckless driving," arising from the same act upon
which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was
brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent
prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court
unfailingly and consistently answered in the affirmative in People v. Belga26 (promulgated in 1957 by the Court en
banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v.
Narvas28 (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the
Court en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per Makalintal,
J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court
of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of
Manila33 (promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second
prosecutions as constitutionally impermissible under the Double Jeopardy Clause.

The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to
quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution
for "serious physical injuries and damage to property thru reckless imprudence" because of the accused’s prior
acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the
Court explained:34

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the
accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence
under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the
result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify
the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different
crimes and prosecutions.35 x x x (Emphasis supplied)

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning
of Quizon.

There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding Diaz by more
than a decade, El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial Court in November 1940,
allowed the subsequent prosecution of an accused for reckless imprudence resulting in damage to property despite
his previous conviction for multiple physical injuries arising from the same reckless operation of a motor vehicle
upon which the second prosecution was based. Estipona’s inconsistency with the post-war Diaz chain of
jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in
Buerano.37 There, we reviewed the Court of Appeals’ conviction of an accused for "damage to property for reckless
imprudence" despite his prior conviction for "slight and less serious physical injuries thru reckless imprudence,"
arising from the same act upon which the second charge was based. The Court of Appeals had relied on Estipona.
We reversed on the strength of Buan:38

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs.
Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29,
1968), this Court, speaking thru Justice J. B. L. Reyes, held that –
Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the
accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence
under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the
result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify
the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different
crimes and prosecutions.

xxxx

. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto,
Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for
serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both
charges are derived from the consequences of one and the same vehicular accident, because the second accusation
places the appellant in second jeopardy for the same offense.39 (Emphasis supplied)

Thus, for all intents and purposes, Buerano had effectively overruled Estipona.

It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined causes with
the accused, a fact which did not escape the Court’s attention:

Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969 (page
82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner’s plea of double jeopardy and
submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding petitioner
guilty of damage to property through reckless imprudence should be set aside, without costs." He stressed that "if
double jeopardy exists where the reckless act resulted into homicide and physical injuries. then the same
consequence must perforce follow where the same reckless act caused merely damage to property-not death-and
physical injuries. Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any
amount of damages caused to a motors vehicle arising from the same mishap." 40 (Emphasis supplied)

Hence, we find merit in petitioner’s submission that the lower courts erred in refusing to extend in his favor the
mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be tailored to
petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also involved in a vehicular
collision, was charged in two separate Informations with "Slight Physical Injuries thru Reckless Imprudence" and
"Homicide with Serious Physical Injuries thru Reckless Imprudence." Following his acquittal of the former, the
accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief,
but, on reconsideration, found merit in the accused’s claim and dismissed the second case. In affirming the trial
court, we quoted with approval its analysis of the issue following Diaz and its progeny People v. Belga: 42

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding: —

[T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in People v.
Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the Peace Court of
Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from a collision between
the two automobiles driven by them (Crim. Case No. 88). Without the aforesaid complaint having been dismissed or
otherwise disposed of, two other criminal complaints were filed in the same justice of the peace court, in connection
with the same collision one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the
owner of one of the vehicles involved in the collision, and another for multiple physical injuries through reckless
imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of these two complaints
were filed against Jose Belga only. After trial, both defendants were acquitted of the charge against them in Crim.
Case No. 88. Following his acquittal, Jose Belga moved to quash the complaint for multiple physical injuries
through reckless imprudence filed against him by the injured passengers, contending that the case was just a
duplication of the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was
denied and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In
the meantime, the case for damage to property through reckless imprudence filed by one of the owners of the
vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose Belga had
waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal filed in the Court
of First Instance two informations against Jose Belga, one for physical injuries through reckless imprudence, and
another for damage to property through reckless imprudence. Both cases were dismissed by the Court of First
Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by
the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: .

The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police
constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property through
reckless imprudence.

In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was charged in the
municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having
driven an automobile in a ῾fast and reckless manner ... thereby causing an accident.’ After the accused had pleaded
not guilty the case was dismissed in that court ῾for failure of the Government to prosecute’. But some time thereafter
the city attorney filed an information in the Court of First Instance of Rizal, charging the same accused with damage
to property thru reckless imprudence. The amount of the damage was alleged to be ₱249.50. Pleading double
jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the ruling. Among other things
we there said through Mr. Justice Montemayor —

The next question to determine is the relation between the first offense of violation of the Motor Vehicle Law
prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless imprudence
charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or not the second offense
charged necessarily includes or is necessarily included in the offense charged in the former complaint or information
(Rule 113, Sec. 9). Another test is whether the evidence which proves one would prove the other that is to say
whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and
vice versa; or whether one crime is an ingredient of the other. x x x

xxxx

The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney that the
charge for slight physical injuries through reckless imprudence could not have been joined with the charge for
homicide with serious physical injuries through reckless imprudence in this case, in view of the provisions of Art. 48
of the Revised Penal Code, as amended. The prosecution’s contention might be true. But neither was the prosecution
obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the
more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted
the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the
defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide
with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence
of which the defendant have been previously cleared by the inferior court. 43

Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the purpose of
delimiting or clarifying its application." 44 We declined the invitation, thus:

The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double jeopardy,
upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence.
In the same breath said State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely on the
ruling of the Belga case x x x, upon which the order of dismissal of the lower court was anchored. The Solicitor
General, however, urges a re-examination of said ruling, upon certain considerations for the purpose of delimiting or
clarifying its application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga
case, the facts of which are analogous or similar to those in the present case, will yield no practical advantage to the
government. On one hand, there is nothing which would warrant a delimitation or clarification of the applicability of
the Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in the
identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis supplied)

Article 48 Does not Apply to Acts Penalized

Under Article 365 of the Revised Penal Code

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from persistent
but awkward attempts to harmonize conceptually incompatible substantive and procedural rules in criminal law,
namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both under the
Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under
either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding
from its operation light felonies46); and (2) when an offense is a necessary means for committing the other. The
legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only
serve the maximum of the penalty for the most serious crime.

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude x x x
behind the act, the dangerous recklessness, lack of care or foresight x x x," 47 a single mental attitude regardless of
the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences.

Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution multiple
intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365 governs
the prosecution of imprudent acts and their consequences. However, the complexities of human interaction can
produce a hybrid quasi-offense not falling under either models – that of a single criminal negligence resulting in
multiple non-crime damages to persons and property with varying penalties corresponding to light, less grave or
grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted?
Should Article 48’s framework apply to "complex" the single quasi-offense with its multiple (non-criminal)
consequences (excluding those amounting to light offenses which will be tried separately)? Or should the
prosecution proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be
penalized separately following the scheme of penalties under Article 365?

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of double
jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple consequences48 unless one
consequence amounts to a light felony, in which case charges were split by grouping, on the one hand, resulting acts
amounting to grave or less grave felonies and filing the charge with the second level courts and, on the other hand,
resulting acts amounting to light felonies and filing the charge with the first level courts.49 Expectedly, this is the
approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under Republic Act No.
7691,50 the MeTC has now exclusive original jurisdiction to impose the most serious penalty under Article 365
which is prision correccional in its medium period.

Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized under Article
365 involves only resulting acts penalized as grave or less grave felonies because there will be a single prosecution
of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is penalized as a light offense
and the other acts are penalized as grave or less grave offenses, in which case Article 48 is not deemed to apply and
the act penalized as a light offense is tried separately from the resulting acts penalized as grave or less grave
offenses.

The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the quasi-
crime collectively alleged in one charge, regardless of their number or severity, 51 penalizing each consequence
separately. Thus, in Angeles v. Jose,52 we interpreted paragraph three of Article 365, in relation to a charge alleging
"reckless imprudence resulting in damage to property and less serious physical injuries," as follows:

[T]he third paragraph of said article, x x x reads as follows:

When the execution of the act covered by this article shall have only resulted in damage to the property of another,
the offender shall be punished by a fine ranging from an amount equal to the value of said damage to three times
such value, but which shall in no case be less than 25 pesos.

The above-quoted provision simply means that if there is only damage to property the amount fixed therein shall be
imposed, but if there are also physical injuries there should be an additional penalty for the latter. The information
cannot be split into two; one for the physical injuries, and another for the damage to property, x x x. 53 (Emphasis
supplied)

By "additional penalty," the Court meant, logically, the penalty scheme under Article 365.

Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one
framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking its resulting
acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its present
framing under Article 365, discard its conception under the Quizon and Diaz lines of cases, and treat the multiple
consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal
code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes, require single
prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in
Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in
Quizon and applied to double jeopardy adjudication in the Diaz line of cases.1avvphi1

A becoming regard of this Court’s place in our scheme of government denying it the power to make laws constrains
us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies under our penal code.
Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-
offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) an offense which is a
necessary means for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor General’s
argument that double jeopardy does not bar a second prosecution for slight physical injuries through reckless
imprudence allegedly because the charge for that offense could not be joined with the other charge for serious
physical injuries through reckless imprudence following Article 48 of the Revised Penal Code:

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence
could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48
of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was
considered and rejected by this Court in the case of People vs. [Silva] x x x:

[T]he prosecution’s contention might be true. But neither was the prosecution obliged to first prosecute the accused
for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with
serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in
the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is
not now in a position to press in this case the more serious charge of homicide with serious physical injuries through
reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant has been
previously cleared by the inferior court.

[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x of the charge of
slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries
through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the
consequences of one and the same vehicular accident, because the second accusation places the appellant in second
jeopardy for the same offense. 54 (Emphasis supplied)

Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365,
irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally impermissible
second prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to proper use.
Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or
severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article
365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and
only one information shall be filed in the same first level court.55

Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of their
constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent effect of the
favorable sentencing formula under Article 48, but any disadvantage thus caused is more than compensated by the
certainty of non-prosecution for quasi-crime effects qualifying as "light offenses" (or, as here, for the more serious
consequence prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-
crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed under a single
prosecution of all resulting acts, whether penalized as grave, less grave or light offenses. This will still keep intact
the distinct concept of quasi-offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting
crimes occupying a lower rung of culpability, should cushion the effect of this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of
the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No. 82366
against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the
ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1477 January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JULIO GUILLEN, defendant-appellant.

Mariano A. Albert for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.

PER CURIAM, J.:

This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First
Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond
reasonable doubt of the crime of murder and multiple frustrated murder, as charged in the information, and is
sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000
and to pay the costs.

Upon arraignment the accused entered a plea of not guilty to the charges contained in the information.

Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the
honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and the defense,
rendered judgment as above stated.

In this connection it should be stated that, at the beginning of the trial and before arraignment, counsel de oficio for
the accused moved that the mental condition of Guillen be examined. The court, notwithstanding that it had found
out from the answers of the accused to questions propounded to him in order to test the soundness of his mind, that
he was not suffering from any mental derangement, ordered that Julio Guillen be confined for Hospital, there to be
examined by medical experts who should report their findings accordingly. This was done, and, according to the
report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio
Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13 and 14,
reads:

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission. There was not a single moment
during his whole 24 hours daily, that he was not under observation.
 The motive behind the commission of the crime is stated above. The veracity of this motivation was
determined in the Narcosynthesis. That the narco-synthesis was successful was checked up the day after the
test. The narco-synthesis proved not only reveal any conflict or complex that may explain a delusional or
hallucinatory motive behind the act.

Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen.
He was found to be intelligent, always able to differentiate right from wrong, fully aware of the nature of
the crime he committed and is equally decided to suffer for it in any manner or form.

His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives,
temptations and provocations that preceded the act, were all those of an individual with a sound mind.

On the other hand he is an man of strong will and conviction and once arriving at a decision he executes,
irrespective of consequences and as in this case, the commission of the act at Plaza Miranda.

What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is
seen not only in the present instance, but sometime when an employee in la Clementina Cigar Factory he
engaged in a boxing bout Mr. Manzano, a Span-wanted to abuse the women cigar makers, and felt it his
duty to defend them. One time he ran after a policeman with a knife in hand after being provoked to a fight
several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was
running for a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his
apparently outspoken speeches.

All these mean a defect in his personality characterized by a weakness of censorship especially in relation
to rationalization about the consequences of his acts.

In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an
individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic Inferiority.

Final Diagnosis

Not insane: Constitutional Psychopathic Inferiority, without psychosis.

In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr.
Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not being
insane, could be tired, as he was tired, for the offenses he committed on the date in question.

THE FACTS

Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and
their respective memoranda, we find that there is no disagreement between the prosecution and the defense, as to the
essential facts which caused the filing of the present criminal case against this accused. Those facts may be stated as
follows:

On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any particular political
group, has voted for the defeated candidate in the presidential elections held in 1946. Manuel A. Roxas, the
successful candidate, assumed the office of President of the Commonwealth and subsequently President of the
President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his
alleged failure to redeem the pledges and fulfill the promises made by him during the presidential election
campaign; and his disappointment was aggravated when, according to him, President Roxas, instead of looking after
the interest of his country, sponsored and campaigned for the approval of the so-called "parity" measure. Hence he
determined to assassinate the President.
After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity
presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal Party at Plaza de
Miranda, Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his wife and daughter and
surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform erected
for that purpose and delivered his speech expounding and trying to convince his thousand of listeners of the
advantages to be gained by the Philippines, should the constitutional amendment granting American citizens the
same rights granted to Filipino nationals be adopted.

Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm,
which was duly licensed, he thought of two hand grenades which were given him by an American soldier in the
early days of the liberation of Manila in exchange for two bottles of whisky. He had likewise been weighing the
chances of killing President Roxas, either by going to Malacañan, or following his intended victim in the latter's
trips to provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having
encountered many difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on
the night of March 10, 1947.

On the morning of that he went to the house of Amando Hernandez whom he requested to prepare for him a
document (Exhibit B), in accordance with their pervious understanding in the preceding afternoon, when they met at
the premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its
materially in this case, we deem it proper to quote hereunder the contents of said document. An English translation
(Exhibit B-2) from its original Tagalog reads:

FOR THE SAKE OF A FREE PHILIPPINES

I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by
myself alone. It took me many days and nights pondering over this act, talking to my own conscience, to
my God, until I reached my conclusion. It was my duty.

I did not expected to live long; I only had on life to spare. And had I expected to lives to spare, I would not
have hesitated either ton sacrifice it for the sake of a principle which was the welfare of the people.

Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and
there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated.

I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived
the people, he had astounded them with no other purpose than to entice them; he even went to the extent of
risking the heritage of our future generations. For these reasons he should not continue any longer. His life
would mean nothing as compared with the welfare of eighteen million souls. And why should I not give up
my life too if only the good of those eighteen million souls.

These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of
my act. I t matters not if others will curse me. Time and history will show, I am sure, that I have only
displayed a high degree of patriotism in my performance of my said act.

Hurrah for a free Philippines.

Cheers for the happiness of every Filipino home.

May God pity on me.

Amen.
 JULIO C. GUILLEN

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was
handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said Exhibit B-1 appears
unsigned, because he was in a hurry for that meeting at Plaza de Miranda.

When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also
contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located close to the platform, and
when he decided to carry out his evil purpose he stood on the chair on which he had been sitting and, from a
distance of about seven meters, he hurled the grenade at the President when the latter had just closed his speech, was
being congratulated by Ambassador Romulo and was about to leave the platform.

General Castañeda, who was on the platform, saw the smoking, hissing, grenade and without losing his presence of
mind, kicked it away from the platform, along the stairway, and towards an open space where the general thought
the grenade was likely to do the least harm; and, covering the President with his body, shouted to the crowd that
everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of persons who
were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the
fragments of the grenade had seriously injured Simeon Varela (or Barrela ) — who died on the following day as the
result of mortal wounds caused by the fragments of the grenade (Exhibits F and F-1) — Alfredo Eva, Jose Fabio,
Pedro Carrillo and Emilio Maglalang.

Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that one
Angel Garcia, who was one spectators at that meeting, saw how a person who was standing next to him hurled an
object at the platform and, after the explosion, ran away towards a barber shop located near the platform at Plaza de
Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went after him and had almost
succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia
pursued him, but some detectives, mistaking the former for the real criminal and the author of the explosion, placed
him under arrest. In the meantime, while the City Mayor and some agents of the Manila Police Department were
investigating the affair, one Manuel Robles volunteered the information that the person with whom Angel Garcia
was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen for the previous ten
years and had seen each other in the plaza a few moments previous to the explosion.

The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence,
found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and identified by Angel
Garcia, as the same person who hurled towards the platform the object which exploded and whom Garcia tried to
hold when he was running away.

During the investigation conducted by the police he readily admitted his responsibility, although at the same time he
tried to justify his action in throwing the bomb at President Roxas. He also indicated to his captors the place where
he had hidden his so called last will quoted above and marked Exhibit B, which was then unsigned by him and
subsequently signed at the police headquarters.

Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand
grenade (Exhibit D), and, in the presence of witnesses he signed a statement which contained his answers to
question propounded to him by Major A. Quintos of the Manila Police, who investigated him soon after his arrest
(Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations
and made by him on the witness stand during the trial of this case.

THE ISSUES

In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed by the
trial court, namely: first, "in finding the appellant guilty of murder for the death of Simeon Varela"; second, "in
declaring the appellant guilty of the complex crime of murder and multiple frustrated murder"; third, "in applying
sub-section 1 of article 49 of the Revised Penal Code in determining the penalty to be imposed upon the accused";
andfourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public
authorities in the commission of crime."

The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any
shadow of doubt that, when Guillen attended that meeting, carrying with him two hand grenades, to put into
execution his preconceived plan to assassinate President Roxas, he knew fully well that, by throwing one of those
two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the persons
who were around his main and intended victim from being killed or at least injured, due to the highly explosive
nature of the bomb employed by him to carry out his evil purpose.

Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript)
supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to kill the President,
but that it did not make any difference to him if there were some people around the President when he hurled that
bomb, because the killing of those who surrounded the President was tantamount to killing the President, in view of
the fact that those persons, being loyal to the President being loyal to the President, were identified with the latter. In
other word, although it was not his main intention to kill the persons surrounding the President, he felt no
conjunction in killing them also in order to attain his main purpose of killing the President.

The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through
reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries in regard to
Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the corresponding
penalties for the different felonies committed, the sum total of which shall not exceed three times the penalty to be
imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised Penal Code.

In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is
therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal
Code, criminal liability is incurred by any person committing felony (delito) although the wrongful act done be
different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it
being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of
Viada, "in order that an act may be qualified as imprudence it is necessary that either malice nor intention to cause
injury should intervene; where such intention exists, the act should qualified by the felony it has produced even
though it may not have been the intention of the actor to cause an evil of such gravity as that produced.' (Viada's
Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do an unlawful
act is essentially inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such
unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless
imprudence. (People vs. Gona, 54 Phil., 605)

Squarely on the point by counsel is the following decision of the Supreme Court of Spain:

Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose
negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un
cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de fuego
disparada por A desde la calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion en
A de matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c de
imprudencia temeraria? — La Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno al
procesado a catorse anos de reclusion por el homivcidio y a un año de prision correctional por la
imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y no de homicidio, por
haberse ejecutado con aleviosa. es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria
el procesado, no pudo calificarse de imprudencia teme raria, sino que tambien debio declararsele
responsable de la misma, a tenor de lo puesto en este apartado ultimo del articulo; y que siendo ambas
muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito
de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte.
Se ve, pues, claramente que en el antedicha sentencia, aparte de otros articulos del Codigo, se infringio por
 la Sala la disposicion de este apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal
Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)

Article 48 of the Revised Penal Code provides as follows:

Art. 48. Penalty for Complex Crimes. — When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period.

We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is
clearly governed by the first clause of article 48 because by a single act, that a throwing highly explosive hand
grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which Simeon Varela
was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro
Carrillo and Emilio Maglalang were the injured parties.

The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs.
Mabug-at, supra, this court held that the qualifying circumstance of treachery may be properly considered, even
when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence
that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the
same case it was held that the qualifying circumstance of premeditation may not be properly taken into the account
when the person whom the defendant proposed to kill was different from the one who became his victim.

There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him with
the intention to kill him, thereby commencing the commission of a felony by over acts, but he did not succeed in
assassinating him "by reason of some cause or accident other than his own spontaneous desistance." For the same
reason we qualify the injuries caused on the four other persons already named as merely attempted and not frustrated
murder.

In this connection, it should be stated that , although there is abundant proof that , in violation of the provisions of
article 148 of the Revised Penal Code, the accused Guillen has committed among others the offense of assault upon
a person in authority, for in fact his efforts were directed towards the execution of his main purpose of eliminating
President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his official capacity
as the Chief Executive of the nation the hand grenade in question, yet, in view of the appropriate allegation charging
Guillen with the commission of said offense, we shall refrain making a finding to that effect.

The complex crimes of murder and multiple attempted murder committed by the accused with the single act of
throwing a hand grenade at the President, was attended by the various aggravating circumstances alleged in the
information, without any mitigating circumstance. But we do not deem it necessary to consider said aggravating
circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty for
the most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporal in
its maximum period to death. (Art. 248.)

It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts
and circumstances hereinabove narrated.

The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a
unanimous vote. The death sentence shall be executed in accordance with article 81 of the Revised Penal Code,
under authority of the Director of Prisons, on such working day as the trial court may fix within 30 days from the
date the record shall have been remanded. It is so ordered.
 FIRST DIVISION
[G.R. No. 123485. August 31, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE SABALONES alias Roling, ARTEMIO
TIMOTEO BERONGA, TEODULO ALEGARBES and EUFEMIO CABANERO, accused,
ROLUSAPE SABALONES alias Roling and ARTEMIO TIMOTEO BERONGA, accused-appellants.

DECISION
PANGANIBAN, J.:

Factual findings of trial courts which are affirmed by the Court of Appeals are, as a general rule, binding and
conclusive upon the Supreme Court. Alibi, on the other hand, cannot prevail over positive identification by credible
witnesses. Furthermore, alleged violations of constitutional rights during custodial investigation are relevant only
when the conviction of the accused by the trial court is based on the evidence obtained during such investigation.

The Case

These are the principles relied upon by the Court in resolving this appeal from the Court of Appeals
(CA)[1] Decision[2] dated September 28, 1995, convicting Rolusape Sabalones and Timoteo Beronga of murder and
frustrated murder. The convictions arose from a shooting incident on June 1, 1985 in Talisay, Cebu, which resulted in
the killing of two persons and the wounding of three others, who were all riding in two vehicles which were allegedly
ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial Prosecutor Juanito M. Gabiana Sr.
filed before the Regional Trial Court (RTC) of Cebu City, Branch 7,[3] five amended Informations charging four John
Does, who were later identified as Rolusape Sabalones, Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio
Cabanero, with two counts of murder and three counts of frustrated murder. The Informations are quoted hereunder.

1) Crim Case No. CBU-9257 for murder:

That on the 1st day of June, 1985, at 11:45 oclock in the evening, more or less, at Mansueto Village, Bulacao,
Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one another, armed with high-powered
firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and
shoot GLENN TIEMPO, who was riding [i]n a jeep and who gave no provocation, thereby inflicting upon the latter
several gunshot wounds, thereby causing his instantaneous death.

CONTRARY TO Article 248 of the Revised Penal Code.

2) Criminal Case No. 9258 for murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less at Mansueto Village, Barangay
Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping one another, armed with high-powered
firearms, with intent to kill and treachery, did [then] and there wilfully, unlawfully and feloniously attack, assault
and shoot ALFREDO NARDO, who was riding on a jeep and who gave no provocation, thereby inflicting upon the
latter several gunshot wounds, thereby causing his instantaneous death.

CONTRARY TO Article 248 of the Revised Penal Code.

3) Crim Case No. CBU-9259 for frustrated murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less, at Mansueto Village, Barangay
Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused conspiring, confederating and mutually helping one another, armed with high-powered
firearms, with intent to kill and treachery, did and there wilfully, unlawfully and feloniously attack, assault and shoot
REY BOLO who was riding in a car and who gave no provocation, thereby inflicting upon the latter the following
injuries to wit:

laceration, mouth due to gunshot wound, gunshot wound (L) shoulder penetrating (L) chest; gunshot wound (R)
hand (palm); open fracture (L) clavicle (L) scapula; contusion (L) lung;

thereby performing all the acts of execution which would produce the crime of [m]urder as a consequence but
which, nevertheless, did not produce it by reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.

IN VIOLATION of Article 248 of the Revised Penal Code.

4) Criminal Case No. 9260 for frustrated murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less, at Mansueto Village, Barangay
Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused conspiring, confederating and mutually helping one another, armed with high-powered
firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and
shoot ROGELIO PRESORES, who was riding in a car and who gave no provocation, thereby inflicting upon the
latter the following injuries, to wit:

gunshot wound, thru and thru right chest

thereby performing all the acts of execution which would produce the crime of [m]urder as a consequence but
which, nevertheless, did not produce it by reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.

IN VIOLATION of Article 248 of the Revised Penal Code.

5) Criminal Case No. 9261 for frustrated murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less, at Mansueto Village, Barangay
Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused conspiring, confederating and mutually helping one another, armed with high-powered
firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and
shoot NELSON TIEMPO, who was riding in a car and who gave no provocation, thereby inflicting upon the latter
the following injuries, to wit:

Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby performing all the acts of execution
which would produce the crime of [m]urder as a consequence but which nevertheless, did not produce it by reason
of causes independent of the will of the perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.

Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio Timoteo Beronga were the first
to be arraigned. Upon the arrest of the two, the Informations were amended by the public prosecutor, with the
conformity of the defense counsel, by substituting the names of the two accused for the John Does appearing in the
original Informations. When arraigned, said accused, assisted by their respective lawyers, pleaded not guilty to the
five Informations.
Alegarbes died in the course of trial; thus, the cases against him were dismissed. Accused Cabanero remained at
large. Sabalones, on the other hand, was eventually arrested. Subsequently, he jumped bail but was recaptured in 1988
and thereafter pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were jointly tried. Thereafter, the lower court found them guilty
beyond reasonable doubt of the crimes charged. The RTC disposed as follows:

WHEREFORE, premises above-set forth, the Court finds accused ROLUSAPE SABALONES and (ARTEMIO)
TIMOTEO BERONGA, [g]uilty beyond reasonable doubt, as principals:

In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as
minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
indemnify the heirs of deceased, Glenn Tiempo, the sum of P50,000.00;

In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as
minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
indemnify the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;

In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art.
50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8) years of prision
mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of [re]clusion [t]emporal, as maximum, to
indemnify the victim, Rey Bolo, the sum of P20,000.00;

In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art.
50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8) years of prision
mayor, as minimum, to [f]ourteen (14) years and [e]ight months of [r]eclusion [t]emporal, as maximum, to
indemnify the victim, Rogelio Presores, the sum of P20,000.00;

In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art.
50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8) years of prision
mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of [r]eclusion [t]emporal, as maximum, to
indemnify the victim, Nelson Tiempo, the sum of P20,000.00; and

To pay the costs in all instances. The period of their preventive imprisonment shall be credited to each accused in
full.

SO ORDERED.[4]

Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the CA affirmed their conviction but
sentenced them to reclusion perpetua for the murders they were found guilty of. Accordingly, the appellate court,
without entering judgment, certified the case to the Supreme Court in accordance with Section 13, Rule 124 of the
Rules of Court.The dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-appellants Rolusa[p]e Sabalones and Artemio
Timoteo Beronga for murder in Crim. Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated [m]urder in Crim.
Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is hereby AFFIRMED; however, the penalties in the [f]rustrated
[m]urder and [m]urder cases are hereby MODIFIED, such that both accused-appellants are each sentenced to
imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as minimum to SEVENTEEN (17) YEARS and
FOUR (4) MONTHS of [r]eclusion [t]emporal medium as maximum in each of the three [f]rustrated [m]urder cases
(Crim. Cases Nos. CBU-9259, CBU-9260 and CBU-9261); and are each sentenced to [r]eclusion [p]erpetua in each
of the two [m]urder cases (Crim. Cases Nos. CBU-9257 and CBU-9258). The indemnity to the victim in each
[f]rustrated [m]urder case shall remain. In conformity with Rule 124, Section 13 of the Rules of Court, however, this
Court refrains from entering judgment, and hereby certifies the case and orders that the entire record hereof be
elevated to the Supreme Court for review.[5]

After the Court of Appeals certified the case to this Court, we required appellants to file supplemental
briefs. Appellants failed to comply within the prescribed period and were deemed to have waived their right to do
so.[6] Thus, in resolving this case, this Court will address primarily the arguments raised by the appellants in their Brief
before the Court of Appeals, which assailed the RTC Decision.

The Facts

Version of the Prosecution

The solicitor general[7] quoted the following factual findings of the trial court:

Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1, 1985 at 6:00 oclock in the evening, he was
at the residence of Inday Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to attend a
wedding. He stayed until 9:00 oclock in the evening and proceeded to the house of Maj. Tiempo at Basak,
Mambaling, Cebu City where a small gathering was also taking place. (pp. 3-6, tsn, April 7, 1987)

Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio Presores, Rogelio Oliveros, Junior Villoria,
Rey Bolo and Alfredo Nardo. (p. 7, ibid.)

At about 11:00 oclock in the evening, Stephen Lim, who was also at the party, called their group and requested them
to push his car. When the engine started, the former asked them to drive his car home. (pp. 7-11, ibid.)

Together with Nelson Tiempo, who was at the wheel, Rogelio Presores, Rogelio Oliveros and Junior Villoria, they
drove to the residence of Stephen Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p. 12, ibid.)

Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an owner-type jeep, driven by the latter,
in order to bring back the group [as] soon as the car of Mr. Lim was parked in his home. (p. 21, ibid.)

The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the car. When they arrived at the gate of
the house of Stephen Lim, they were met with a sudden burst of gunfire. He looked at the direction where the
gunfire came, and saw [the] persons [who] fired at the jeep. He identified accused, Teodulo Alegarbes, Rolusape
Sabalones and Timoteo Beronga as the persons who fired at the vehicle. Except for Teodulo Alegarbes, who was
naked from [the] waist up, the gunmen wore clothes. (pp. 21-23; 13-16; 33, ibid.)

After firing at the jeep, the assailants shot the car they were riding[,] hitting Nelson Tiempo on the throat and
Rogelio Presores on the breast. Despite the injury he sustained, Nelson Tiempo was able to maneuver the car back to
their residence. (pp. 17-19, ibid.)
He immediately informed Maj. Tiempo about the incident and the lat[t]er brought the victims to the Cebu Doctors
Hospital. (p. 20, ibid.)

Rogelio Presores corroborated in substance the testimony of Edwin Santos, being one of those who were in the car
driven by Nelson Tiempo to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)

He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo and Glenn Tiempo as passengers
arrived at the front gate of Lims residence and while their car was 3 meters from the rear end of the jeep, there was a
volley of gunfire. He glanced at the direction of the gunfire and saw the jeep being fired at by four persons, who
were standing behind a concrete wall, 42 inches in height, and armed with long firearms. Thenceforth, he saw
Alfredo Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the ground. (pp. 6-7, ibid.)

He recognized accused, Rolusape Sabalones, as one of those who fired at the jeep. He also identified in Court
accused, Teodulo Alegarbes, Timoteo Beronga and another person, whom he recognized only through his facial
appearance. (pp. 7-8, ibid.)

When the shots were directed [at] their car[,] they were able to bend their heads low. When the firing stopped, he
directed Nelson Tiempo to back out from the place. As the latter was maneuvering the car, the shooting continued
and he was hit in the breast while Nelson Tiempo, in the neck, and the windshield of the vehicle was shattered. (p.
10, ibid.)

Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctors Hospital. He and Nelson Tiempo were
operated on. He had incurred hospital expenses in the sum of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)

Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory, Regional Unit 7 stationed at Camp Sotero
Cabahug, Cebu City remembered having performed a post-mortem examination on the dead body of Glenn Tiempo
on June 2, 1985 at the Cosmopolitan Funeral Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987)

He issued the necessary Death Certificate, (Exh. D) and Necropsy Report, (Exh. F) and indicated therein that the
victims cause of death was [c]ardio respiratory arrest due to [s]hock and [h]emorrhage [s]econdary to [g]unshot
wounds to the trunk. (p. 8, ibid.)

The victim sustained gunshot wounds in the right chest and left lumbar area. (pp. 10-11, ibid.)

He explained that in gunshot wound no. 1, the wound entrance[,] which [was] characterized by invaginated edges
and contusion collar[,] was located in the right chest and the bullet went up to the left clavicle hitting a bone which
incompletely fractured it causing the navigation of the bullet to the left and to the anterior side of the body. He
recovered a slug, (Exh. G) below the muscles of the left clavicle. (p. 21, ibid.)

Based on the trajectory of the bullet, the assailant could have been [o]n the right side of the victim or in front of the
victim but [o]n a lower level than the latter.

In both gunshot wounds, he did not find any powder burns which would indicate that the muzzle of the gun was
beyond a distance of 12 inches from the target. (p. 15, ibid.)

At the time he conducted the autopsy, he noted that rigor mortis in its early stage had already set in which denote[s]
that death had occurred 5 to 6 hours earlier. (pp. 34-5, ibid.)

Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified that when he learned about the incident
in question, he immediately summoned military soldiers and together they proceeded to the scene. (pp. 4-6, tsn,
Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately carried him in his arms and rushed him
to the hospital but the victim was pronounced Dead on Arrival. (pp. 6-7, ibid.)

They buried his son, who was then barely 14 years old, at Cebu Memorial Park and had incurred funeral
expenses (Exhs. K, L, O). (pp. 7-8, ibid.)

His other son, Nelson, then 21 years old and a graduate of [m]edical [t]echology, was admitted at the Cebu Doctors
Hospital for gunshot wound in the neck. The latter survived but could hardly talk as a result of the injuries he
sustained. He had incurred medical and hospitalization expenses in the sum of P21,594.22, (Exh. H), (pp. 8-
10, ibid.)

He had also incurred expenses in connection with the hospitalization of the injured victims, Rogelio Presores and
Rey Bolo in the amount[s] of P5,412.69, (exh. I) and P9,431.10, (Exh. J), respectively. (p. 11, ibid.)

He further stated that he [was] familiar with the accused, Roling Sabalones, because the latter had a criminal record
in their office in connection with the kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.)

xxxxxxxxx

Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu Metrodiscom, had conducted an autopsy on the
dead body of Alfredo Nardo, who sustained two (2) gunshot wounds in the lower lip and left intraclavicular region,
upon the request of the [c]hief of the Homicide Section of Cebu Metrodiscom. He issued the victims Necropsy
Report, (Exh. F) and Death Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov. 29, 1988)

He stated that the wound of entrance in gunshot wound no. 1 was located in the lower lip, more or less[,] on the left
side making an exit in the left mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988)

In gunshot wound no. 2, the wound of entrance was in the left intraclavicular region exiting at the back as reflected
in the sketch, (Exh. F-2). This wound was fatal and [could] almost cause an instantaneous death considering that the
bullet penetrated the thoracic cavity, lacerating the lungs and perforating the heart before making an exit. (pp. 11-13,
tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988)

He found no tattooing around the wound of entrance in both gunshot wounds. (pp. 8-9, tsn, Nov. 29, 1988)

He prepared and issued th[e] Necropsy Report, (Exh. F) and Death Certificate, (Exh. G) of Alfredo Nardo who was
identified to him by the latters daughter, Anita Nardo. (pp. 26-27, ibid.)

Rey Bolo, one of the victims, testified that when the jeep he was riding [in] together with Glenn Tiempo and Alfredo
Nardo, reached the gate of the residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8, tsn, March 6,
1989)

He was hit in the right palm and left cheek. He jumped out of the vehicle and ran towards the car which was behind
them but he was again shot at [,] [and hit] in the left scapular region. He was still able to reach the road despite the
injuries he sustained and tried to ask help from the people who were in the vicinity but nobody dared to help him,
[they] simply disappeared from the scene, instead. (pp. 8-9, ibid.)

He took a passenger jeepney to the city and had himself treated at the Cebu Doctors Hospital, and incurred medical
expenses in the sum of P9,000.00. (p. 9, ibid.)

He was issued a Medical Certificate, (Exh. N) by his attending physician.

Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the victims, Nelson Tiempo, Rey Bolo
and Rogelio Presores at the Cebu Doctors Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30, 1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest but the bullet did not penetrate the
chest cavity but only the left axilla. He was not able to recover any slugs because the same disintegrated while the
other was thru and thru. The wound could have proved fatal but the victim miraculously survived. As a consequence
of the injury he sustained, Nelson Tiempo permanently lost his voice because his trachea was shattered. His only
chance of recovery is by coaching and speech therapy. He issued his Medical Certificate. (Exh. O). (pp. 8-11, ibid.)

With regard to the patient, Rey Bolo, the latter suffered multiple gunshot wounds in the left shoulder penetrating the
chest and fracturing the 2nd, 3rd, and 4th ribs in the process, in the right hand fracturing the proximal right thumb
and in the mouth lacerating its soft tissues, per Medical Certificate, (Exh. N) which he issued. (pp. 11-16, ibid.)

Based on the trajectory of the bullet, the gunman could have been in front of the victim, when gunshot would no. 1
was inflicted. (p. 30, ibid.)

With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot wound in the chest with the wound of
entrance in the right anterior chest exiting at the back which was slightly lower than the wound of entrance. He
issued the victims Medical Certificate, (Exh. M). (pp. 34-35, ibid.)

Based on the location of the wound, the gunman could have been in front of the victim but [o]n a slightly higher
elevation than the latter. (pp. 35-36, ibid.)[8]

Version of the Defense

Appellants interposed denial and alibi. Their version of the facts is summarized by the trial court [9] thus:

xxx Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the afternoon of June 1, 1985, he was in
the Talisay Sports Complex located at Tabunok, Talisay, Cebu to attend a cock-derby.

At about 7:00 oclock in the evening, he was fetched by his wife and they left taking a taxicab going to their
residence in Lapulapu City. After passing by the market place, they took a tricycle and arrived home at 8:00 oclock
in the evening.

After taking his supper with his family, he went home to sleep at 10:30 in the evening. The following morning, after
preparing breakfast, he went back to sleep until 11:00 in the morning.

On February 24, 1987, while he was playing mahjong at the corner of R.R. Landon and D. Jakosalem Sts., Cebu
City, complainant, Maj. Juan Tiempo with some companions, arrived and after knowing that he [was] Timmy,
[which was] his nickname, the former immediately held him by the neck.

He ran away but the latter chased him and kicked the door of the house where he hid. He was able to escape through
the back door and took refuge in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio Narcissi.(Tsn-
Abangan, pp. 4-17, October 19, 1989)

On February 27, 1987, upon the advi[c]e of his friend, they approached Gen. Narcissi and informed him of the
incident. The latter brought him to the Provincial Command Headquarters in Lahug, Cebu City to confront Maj.
Juan Tiempo.

After several days, he was brought by Maj. Tiempo to the PC Headquarter[s] in Jones Ave., Cebu City where he was
provided with a lawyer to defend him but he was instructed that he should assent to whatever his lawyer would ask
of him.
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign an Affidavit, (Exh. U) the contents of
which, co[u]ched in the dialect, were read to him.

He also testified that before he was detained at the CPDRC, complainant brought him inside the shop of a certain
Den Ong, where he was again mauled after he denied having any knowledge of the whereabouts of Roling
Sabalones and the carbine.

At the instance of Col. Medija, he was physically examined at the Southern Islands Hospital, Cebu City and was
issued a [M]edical Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18, 1990).

Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company (VECO) South Extension Office, who is in
charge of the billing, disconnection and reconnection of electric current, testified that based on the entries in their
logbook, (Exh. 3) made by their checker, Remigio Villaver, the electrical supply at the Mansueto Compound,
Bulacao, Talisay, Cebu, particularly the Mansueto Homeowners covered by Account No. 465-293000-0, (Exh. 4-B)
was disconnected on January 10, 1985, (Exh. 3-A) for non-payment of electric bills from March 1984 to January
1985 and was reconnected only on June 17, 1985 (Exh. 4, 4-A). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).

Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed] the towns of Talisay and San
Fernando, Cebu had kept the record of disconnection of electrical supply of Mansueto Subdivision in Bulacao,
Talisay, Cebu and the same showed that on January 10, 1985, (Exh. 3-A), a service order was issued by their office
to the Mansueto Homeowners for the permanent disconnection of their electric lights due to non-payment of their
electric bills from March 1984 until January 1985. The actual disconnection took place on December 29, 1984.

Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-Formentera, pp.3-5, Apr. 20, 1990).

Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since 1957 until the present, remembered
that on June 1, 1985, between 10:00 oclock and 11:00 oclock in the evening, he heard a burst of gunfire about 15 to
20 armslength [sic] from his residence.

He did not bother to verify because he was scared since the whole place was in total darkness. (Tsn-Abangan, pp.
18-23, Feb. 22, 1990).

Marilyn Boc, another witness for the accused, stated that on the date and time of the incident in question, while she
was at the wake of Junior Sabalones, younger brother of Roling Sabalones, who died on May 26, 1985, a sudden
burst of gunfire occurred more or less 60 meters away.

Frightened, she went inside a room to hide and saw accused, Roling Sabalones, sound asleep.

She came to know accused, Timoteo Beronga, only during one of the hearings of this case and during the entire
period that the body of the late Junior Sabalones [lay] in state at his residence, she never saw said accused.

She was requested to testify in this case by Thelma Beronga, wife of Timoteo Beronga. (Tsn-Abangan, pp. 9-13,
February 28, 1990).

Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands Hospital, Cebu City had treated the
patient, Timoteo Beronga on March 18, 1987.

Upon examination, he found out that the patient sustained linear abrasion, linear laceration and hematoma in the
different parts of the body. Except for the linear laceration which he believed to have been inflicted two or three
days prior to [the] date of examination, all the other injuries were already healed indicating that the same were
inflicted 10 to 12 days earlier.

He issued the corresponding Medical Certificate (Exh. 2) to the patient. (Tsn-Abangan, pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand and averred that he [was] a resident of
Mansueto Compound, Bulacao, Talisay, Cebu. As shown in the pictures, (Exhs. 3, 4 & 5 with submarkings) his
house is enclosed by a concrete fence about 5 feet 6 inches tall. It is situated 6 meters from the residence of accused,
Roling Sabalones, which was then being rented by Stephen Lim. Outside the fence [are] shrubs and at the left side is
a lamp post provided with 200 watts fluorescent bulb.

On June 1, 1985 at about 7:00 oclock in the evening, he saw Roling Sabalones, whom he personally [knew] because
they used to be neighbors in Talisay, Cebu, at the wake of his brother, Federico Sabalones, Jr. or Junior Sabalones,
as mentioned repeatedly hereabout. They even had a talk and he noticed accused to be physically indisposed being
gravely affected by the loss of his only brother, who met a violent death in the hands of an unknown hitman on May
26, 1985.

He went home after he saw accused [lie] down on a bamboo bench to rest.

At about 12:00 oclock midnight, he was awakened by a rapid burst of gunfire which emanated near his house. He
did not attempt to go down or look outside. He [was] in no position to tell whether or not the street light was lighted.

When he verified the following morning, he noticed bloodstains on the ground as well as inside the jeep which was
parked 2 to 3 meters from his fence and 50 to 70 meters from the house where Junior Sabalones [lay] in state. He
observed that the jeep was riddled with bullets and its windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990).

He admitted that he used to be a counsel of accused, Roling Sabalones, in several cases, among which involved the
death of a certain Garces and Macaraya, which cases were however, dismissed by the Office of the Provincial Fiscal
of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).

Doroteo Ejares, a relative of accused, testified that when he attended the wake of Junior Sabalones on June 1, 1985
at 8:00 oclock in the evening, he saw accused lying on a bamboo bench in the yard of the house of the deceased.

At past 10:00 oclock in the evening, accused excused himself as he was not feeling well and entered a room to rest
while he remained by the door and slept.

At almost 12:00 oclock midnight, he was awakened by a burst of gunfire which took place more or less 20 meters
away and saw the people scamper[ing] for safety. He hid inside the room where accused was sleeping and peeped
thru the door. Not long after, Marilyn Boc entered and in a low voice talked about the incident.

They decided to wake up the accused to inform him of what was happening, but the latter merely opened his eyes
and realizing that accused was too weak, they allowed him to go back to sleep.

When he went home at past 5:00 oclock in the morning of June 2, 1985, he saw a jeep outside of the compound. He
did not bother to investigate or inquire about the incident as he was in a hurry to go home and prepare for the burial
of Junior Sabalones.

He was requested to testify in this case by his aunt and mother of accused Rolusape Sabalones. (Tsn-Tumarao, pp.
10-15, June 13, 1990).

Russo Sabalones, uncle of accused, Sabalones, averred that the latter was once, one of his undercover agents while
he was then the [c]hief of the Intelligence Service of the PC from 1966 until 1968.

As part of their intelligence tradition, an undercover agent is not allowed to carry his real name. In the case of his
nephew and accused, Rolusape Sabalones, the latter chose the name Paciano Laput which name was recorded in
their code of names.
When he retired in 1968, the accused ceased to be an agent and xxx likewise ceased to have the authority to use the
name Paciano Laput. (Tsn-Abangan, p. 12, July 23, 1990).

Alfonso Allere, a distant relative of the accused, remembered having received a call from Roling Sabalones, one
morning after the burial of the latters brother, asking for his advise because of the threats [to] his life which he
received thru telephone from the group of Nabing Velez and the group of the military.

After he had advised accused to lie low, he had not heard of him, since then.

Godofredo Mainegro of the Public Assistance and Complaint Action Office of the Regional Unified Command 7,
received a complaint from one Inocencia Sabalones on March 13, 1986.

He recorded the complaint in their Complaint Sheet, (Exh. 6) and let complainant affix her signature.

After the document was subscribed and sworn to before him, (Exh. 6-C), he indorsed it to their [c]ommanding
[o]fficer, Apolinario Castano. (Tsn-Formentera, pp. 3-10, July 24, 1990).

Ret. Col. Apolinario Castano, recalled that while he was then with the Regional Unified Command 7, his niece,
Racquel Sabalones together with her husband Roling Sabalones, came to him for advi[c]e because the latter was
afraid of his life brought about by the rampant killings of which his brother and the son of Maj. Tiempo were
victims.

Considering that accuseds problem was a police matter, they approached Gen. Ecarma, the then [c]ommander of the
PC/INP, Recom 7, and the latter referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed them that
there was no case filed against the accused. Nevertheless, the latter was advised to be careful and consult a lawyer.

Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on March 12, 1986 at past 10:00 oclock in
the evening, she was roused from sleep by a shout of a man demanding for Roling Sabalones.

Upon hearing the name of her son, she immediately stood up and peeped through the door of her store and saw men
in fatigue uniforms carrying long firearms. Thenceforth, these men boarded a vehicle and left.

On the following morning, she was again awakened by the persistent shouts and pushing of the gate. When she
verified, the man who introduced himself to her as Maj. Tiempo, ordered her to open the gate. Once opened, the men
of Maj. Tiempo entered the house and proceeded to search for Roling Sabalones, whom Maj. Tiempo suspected to
have killed his son and shot another to near death. When she demanded for a search warrant, she was only shown a
piece of paper but was not given the chance to read its contents.

Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that on June 1, 1985 at 1:00 oclock in the
afternoon, she was at the wake of her brother-in-law, Junior Sabalones, at his residence in Bulacao, Talisay, Cebu.

At 11:00 oclock in the evening of the same day, together with her 3 daughters as well as Marlyn Sabarita, Rose
Lapasaran and Gloria Mondejar, left the place in order to sleep in an unoccupied apartment situated 30 meters away
from the house where her deceased, brother-in-law, Junior, was lying in state, as shown in the Sketch, (Exh. 7 and
submarkings) prepared by her. They brought with them a flashlight because the whole place was in total darkness.

As they were about to enter the gate leading to her apartment she noticed a sedan car coming towards them. She
waited for the car to come nearer as she thought that the same belong[ed] to her friend, but the vehicle instead
stopped at the corner of the road, (Exh. 7-F) and then proceeded to the end portion of Mansueto Compound, (Exh. 7-
G). As it moved slowly towards the highway, she rushed inside the apartment.

Few minutes later, she heard a burst of gunfire outside their gate. She immediately gathered her children and
instructed Marlyn Sabarita to use the phone situated at the third door apartment and call the police.
After the lull of gunfire, she went to the terrace and saw people in civilian and in fatigue uniforms with firearms,
gathered around the place. One of these men even asked her about the whereabouts of her husband, whom she left
sleeping in the house of the deceased.

At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones, they were informed by Pedro
Cabanero that Roling Sabalones was a suspect for the death of Nabing Velez and the son of Maj. Tiempo.

She believed that the reason why her husband was implicated in the killing of Nabing Velez was because of the
slapping incident involving her father-in-law, Federico Sabalones, Sr. and Nabing Velez which took place prior to
the death of Junior Sabalones.

After the funeral, she began to receive mysterious calls at their residence in Sikatuna St., Cebu City where they
began staying since 1978. She also noticed cars with tinted windows strangely parked in front of their residence.

Frightened and cowed, they decided to seek the advice of Col. Apolinario Castano, who after relating to him their
fears, advised her husband to lie low and to consult a lawyer.

To allay their apprehension, accused, Roling Sabalones, left Cebu City for Iligan, Manila and other cities to avoid
those who were after him. When she learned about the threat made by Maj. Tiempo on her husband, she forewarned
the latter not to return to Cebu.

Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that in the night in question, she was at the
wake of Junior Sabalones and saw her Papa Roling, the herein accused, lying on the lawn of the house of the
deceased.

She was already in the apartment with her Mama Racquel when she heard a burst of gunfire. Upon instructions of
the latter, she went out to call the police thru the phone located [in] the third apartment occupied by a certain Jet.
(Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).

Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star Daily, while then a military and
police reporter had covered the shooting incident which took place on June 1, 1985 at the Mansueto Compound,
Bulacao, Talisay, Cebu.

At past 1:00 oclock dawn, together with their newspaper photographer, Almario Bitang, they went to the crime
scene boarding the vehicle of the Cosmopolitan Funeral Homes.Arriving thereat, they decided not to proceed inside
the compound because of fear. The place was then in complete darkness.

Upon being informed that the victims were brought to Cebu City Medical Center, they rushed to the place and met
Maj. Tiempo hugging the dead body of his 14-year old son. His photographer took a picture of that pathetic
scene. (Exh. 8-B).

Samson Sabalones, a retired [a]mbassador and uncle of Rolusape Sabalones, posted a bail bond for his nephew with
Eastern Insurance Company, when a warrant for his arrest was issued by the Municipal Court, on March 12, 1986
because he was bothered by the fact that the latter was being unreasonably hunted by several groups. He even
advised the accused to appear in [c]ourt to clarify the nature of the case filed against him.

Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape Sabalones, who introduced himself to her as
Paciano Laput nicknamed, Ondo, in a massage clinic where she was working.

For less than a year, they lived together as husband and wife without the benefit of marriage because according to
her the accused was married but separated from his wife, whose name was never mentioned to her. For such a short
span of time being together, her love for the accused developed to the extent that whatever happen[ed] to him, she
[would] always be there to defend him.
With the help of Maj. delos Santos, who advised her to always stay close [to] the accused, she was able to board the
same vessel. She saw the latter clad in green T-shirt, (Exh. 14) and pants, handcuffed and guarded.

Reaching Cebu City, they took a taxicab and as the vehicle went around the city, she was instructed by Maj. Tiempo
to place the towel, (Exh. 15) which she found inside her bag, on the head of the accused. They stopped at the
Reclamation Area and Maj. Tiempo pulled them out of the vehicle but she held on tightly to Ondo, ripping his
shirt. This pulling incident happened for several times but complainant failed to let them out of the vehicle.

The accused was finally brought to the Provincial Jail while she stayed in the residence of the accused. She returned
to Butuan after a week. (Tsn-Formentera, pp. 5-33, Jan. 22, 1991).

Accused, Rolusape Sabalones, alias Roling, in his defense, with ancillary incidental narrations, testified , that on
June 1, 1985 at 6:00 oclock in the evening, he was at the wake of his only brother, Junior Sabalones, who was killed
on May 26, 1985.

He had no idea as to who was responsible for the killing of his brother inasmuch as the latter had plenty of
enemies. He also did not exert effort to look into the case and to place it under police authority since he had lost
faith in the capabilities of the police. The matter was however reported by his uncle, Ambassador Sabalones, to the
authorities.

He stayed at the wake until 10:00 oclock in the evening because he was not feeling well. He retired in a small room
adjacent to the sala of the house of the deceased. Not long after, he felt somebody waking him up but he merely
opened his eyes and went back to sleep as he was really exhausted.

At 6:30 the following morning, he was roused by his wife so he could prepare for the burial. He came to know about
the burst of gunfire which took place the previous night upon the information of his wife. He did not take the news
seriously as he was busy preparing for the burial of his deceased brother, Jun.

The funeral started at past 8:00 oclock in the morning and he noticed the presence of Maj. Eddie Ricardo and his
men, who were sent by Col. Castano purposely to provide the burial with military security, upon the request of his
wife.

He had a conversation with Maj. Ricardo who inquired about the shooting incident which resulted in the death of the
son of Maj. Tiempo and others in his company. Also in the course of their conversation, he came to know that
Nabing Velez was killed earlier on that same night in Labangon, Cebu [C]ity.

On the same occasion, Pedro Cabanero also notified him that he was a suspect in the killing of Nabing Velez, a radio
commentator of ferocious character, who was engaged in a protection racket with several under his control.

He remembered that a month prior to the death of Nabing Velez, his father, Federico Sabalones, Sr. and the
deceased while matching their fighting cocks at the Talisay Sports Complex, had an altercation and the latter
slapped his paralytic father and challenged him to ask one of his sons to avenge what he had done to him. He came
to know about the incident only after a week.

He did not deny the fact that he was hurt by the actuation of the deceased for humiliating his father but it did not
occur to him to file a case or take any action against the deceased because he was too busy with his business and
with his work as a bet caller in the cockpit.

He advised his father to stay in Bohol to avoid further trouble because he knew that the latter would frequent the
cockpit[,] being a cockfight aficionado.

Likewise, during the burial, he was informed by a PC soldier, Roger Capuyan, that he was also a suspect in the
killing of the son of Maj. Tiempo and even advised him to leave the place.
On the following days after the burial, his wife started to notice cars suspiciously parked in front of their house and
[she] also received mysterious calls.

Together with his wife, they decided to see Col. Apolinario Castao to seek his advise. The latter verified from the
Cebu Metrodiscom and learned that there was no case filed against him.

In the evening of June 6, 1985, he left for Iligan and after a month, he transferred to Ozamis and then to
Pagadian. He likewise went to Manila especially when he learned that his uncle, Samson Sabalones, had arrived
from abroad. The latter posted a bond for his temporary liberty immediately after being informed that a case was
filed against him, before the Municipal Court of Talisay.

Despite xxx the bond put up by his uncle, he did not return to Cebu City because it came to his knowledge that Maj.
Tiempo inquired from the bonding company as to his address.

He also stayed in Marikina in the house of his friend and during his stay in the said place, he registered as a voter
and was issued a Voters Affidavit, (Exh. 19; Exh. R for the prosecution) which bore the name Paciano Mendoza
Laput which [was] his baptismal name. He explained that the name[s] Mendoza and Laput [were] the middle name
and surname, respectively of his mother. The name Rolusape was given to him by his father and the same [was] not
his registered name because during the old days, priests would not allow parents to name their children with names
not found in the Almanac; thus, Paciano [was] his chosen name and the same appeared in his Baptismal Certificate,
(Exh. 20) issued by the Parish of the Blessed Trinity of Talibon, Bohol. In his Birth Certificate, it [was] the name
Rolusape which appeared based upon the data supplied by his father.

He had used the name Paciano during the time when he [was] still a secret agent under his uncle, Gen. Russo
Sabalones, when the latter was still the [c]hief of the C-2 in 1966 until 1967 and as such, he was issued a firearm. He
likewise used said name at the time he was employed at the Governors Office in Agusan and when he registered in
the Civil Service Commission to conceal his identity to protect himself from those who were after him.

From Marikina he proceeded to Davao and then to Butuan City where he was made to campaign for the candidacy
of Gov. Eddie Rama. When the latter won in the election, he was given a job at the Provincial Capitol and later
became an agent of the PC in Butuan using the name, Paciano Laput.

During his stay in Butuan, he met Virgie Pajigal, a manicurist who became his live-in partner.

On October 23, 1988 while he was at the Octagon Cockpit in Butuan with Sgt. Tambok, he was arrested by Capt.
Ochate and was brought to the PC Headquarter[s] in Libertad, Butuan City and was detained. Among the papers
confiscated from him was his Identification Card No. 028-88, (Exh. 21) issued by the PC Command bearing the
name Paciano Laput.

On October 26, 1988 he was taken from the City Jail by Capt. Ochate and some soldiers, one of whom was Maj.
Tiempo whom he met for the first time.

On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo made him lie flat on his belly and
stepped on his back and handcuffed him. He cried in pain because of his sprained shoulder. A certain soldier also
took his watch and ring.

Arriving in Cebu at 7:00 oclock in the morning, he and Virgie Pajigal, who followed him in the boat, were made to
board a taxicab. Maj. Tiempo alighted in certain place and talked to a certain guy. Thereafter, they were brought to
the Reclamation Area and were forced to go down from the vehicle but Virgie Pajigal held him tightly. They were
again pulled out of the taxi but they resisted.

From the Capitol Building, they proceeded to CPDRC and on their way thereto, Maj. Tiempo sat beside him inside
the taxi and boxed him on the right cheek below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident physician, Dr. Dionisio Sadaya, and was also
fingerprinted and photographed, (Exh. 21). He was issued a Medical Certificate, (Exh. 22).

He further stated that he [was] acquainted with his co-accused Timoteo Beronga, known to him as Timmy being also
a bet caller in the cockpit. (Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991; Tsn-
Abangan, pp. 4-18, Apr. 10, 1991).

As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a certain soldier because at the time he
was arrested, his wallet as well as his wristwatch and ring worth P2,000.00 each were confiscated and his hands tied
behind his back.

He also denied the allegation of Maj. Tiempo that he offered the latter the amount of P1,000.000.00 to drop the case
against him, the truth being that while they were on board a vessel bound for Cebu City, Maj. Tiempo compelled
him to tell [who] the real killers of his son [were] because he knew that he (Rolusape Sabalones) was not
responsible. The former also inquired from him as to the whereabouts of the carbine.

He also rebutted complainants testimony that upon their arrival here in Cebu City and while on board a taxicab, he
directed the former [to] first go around the city to locate a certain Romeo Cabaero, whom he did not know
personally.[10]

Ruling of the Court of Appeals

Giving full credence to the evidence of the prosecution, the Court of Appeals affirmed the trial courts Decision
convicting appellants of two counts of murder and three counts of frustrated murder. Like the trial court, it appreciated
the qualifying circumstance of treachery and rejected appellants defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the trial court were erroneous. Hence, for
each count of murder, it sentenced appellants to reclusion perpetua. For each count of frustrated murder, it imposed
the following penalty: ten years (10) of prision mayor (medium), as minimum, to seventeen years (17) years and four
(4) months of reclusion temporal (medium), as maximum. Sustaining the trial court, the Court of Appeals
awarded indemnity of P20,000 to each of the victims of frustrated murder.However, it was silent on the indemnity
of P50,000 awarded by the trial court to the heirs of each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of Appeals, as earlier noted, refrained from
entering judgment and certified the case to the Supreme Court for review, in conformity with Section 13, Rule 124 of
the Rules of Court.
Hence, this appeal before this Court.[11]

The Issues

In his Brief,[12] Appellant Sabalones raised the following errors allegedly committed by the trial court:
I

The court a quo erred in finding that accused Sabalones and his friends left the house where his brother Sabalones
Junior was lying in state and went to their grisly destination amidst the dark and positioned themselves in defense of
his turf against the invasion of a revengeful gang of the supporters of Nabing Velez.

II
The court a quo erred in finding that accused Sabalones and his two co-accused were identified as among the four
gunmen who fired at the victims.

III

The court a quo erred in overlooking or disregarding physical evidence that would have contradicted the testimony
of prosecution witnesses Edwin Santos and Rogelio Presores that the gunmen were shooting at them from a standing
position.

IV

The court a quo erred in holding that the instant case is one of aberratio ictus, which is not a defense, and that the
defense of alibi interposed by the accused may not be considered.

The court a quo erred in not finding that the evidence of the prosecution has not overcome the constitutional
presumption of innocence in favor of the accused.

VI

The court a quo erred in not acquitting the accused on ground of reasonable doubt.

In a Manifestation dated December 20, 1995, Appellant Beronga, through counsel, adopted as his own the Brief of
Sabalones.[13]

The foregoing assignment of errors shall be reformulated by the Court into these three issues or topics: (1)
credibility of the witnesses and sufficiency of the prosecution evidence, (2) defense of denial and alibi, and (3)
characterization of the crimes committed and the penalty therefor.

The Courts Ruling

The appeal is devoid of merit.

First Issue:

Credibility of Witnesses and Sufficiency of Evidence

Well-entrenched is the tenet that this Court will not interfere with the trial courts assessment of the credibility of
the witnesses, absent any indication or showing that the trial court has overlooked some material facts or gravely
abused its discretion,[14] especially where, as in this case, such assessment is affirmed by the Court of Appeals. As this
Court has reiterated often enough, the matter of assigning values to declarations at the witness stand is best and most
competently performed or carried out by a trial judge who, unlike appellate magistrates, can weigh such testimony in
light of the accuseds behavior, demeanor, conduct and attitude at the trial. [15] Giving credence to the testimonies of
the prosecution witnesses, the trial court concluded:
Stripped of unnecessary verbiage, this Court, given the evidence, finds that there is more realism in the conclusion
based on a keener and realistic appraisal of events, circumstances and evidentiary facts on record, that the gun
slaying and violent deaths of Glenn Tiempo and Alfredo Nardo, and the near fatal injuries of Nelson Tiempo, Rey
Bolo and Rogelio Presores, resulted from the felonious and wanton acts of the herein accused for mistaking said
victims for the persons [who were] objects of their wrath. [16]

We stress that factual findings of the lower courts, the trial court and the Court of Appeals are, as a general rule,
binding and conclusive upon the Supreme Court.[17] We find nothing in the instant case to justify a reversal or
modification of the findings of the trial court and the Court of Appeals that appellants committed two counts of murder
and three counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and identified the appellants as the authors of the
crime. His categorical and straightforward testimony is quoted hereunder: [18]
COURT:
Q You stated there was a gun fired. What happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they were firing towards you?
A Near the foot of the electric post and close to the cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place where you were?
A From here to there (The witness indicating the distance by pointing to a place inside the courtroom, indicating
a distance of about 6 to 7 meters, making the witness stand as the point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until we went home.
Q You stated that you saw these persons who were firing at you. Do you know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were firing at you are present in the
courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
 COURT INTERPRETER:
The Court directed the witness to go down from the witness stand and [point] at them, Beronga and Alegarbes.
FISCAL GABIANA:
I would like to make it of record that on the bench of prisoner, only the two accused were seated.
COURT:
Make it of record that only two prisoners were present.
Q Now, Mr. Santos, aside from these two accused you identified as among those who fired [at] you on that evening,
were there other persons that you saw on that particular occasion who fired at you?
A Yes, sir, there were[;] if I can see them, I can identify them.
Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to Timoteo Beronga, Teodulo
Alegarbes and Roling Sabalones as the perpetrators of the crime.His testimony proceeded in this manner:[19]
Q When you arrived at the residence of Stephen Lim, can you remember of any unusual incident that took place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the car was following.
Q What happened next?
A When the jeep was near the gate, the car was following.
Q The car was following the jeep, at what distance?
A 3 to 4 meters.
Q While the car was following the jeep at that distance of 3 to 4 meters, what happened?
A All of a sudden, we heard the burst of gunfire.
Q From what direction was the gunfire?
A Through the direction of the jeep.
Q After hearing the gunfire, what happened?
A We looked at the jeep.
Q What did you see?
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the ground. There were only 3.
Q Who was driving the jeep at that time?
A Alfredo Nardo.
Q What happened after that?
A So, I looked, whence the burst of gunfire came from.
Q What did you see from that gunfire?
A I saw 4 persons standing at the back of the fence.
Q What were those 4 persons doing when they were standing at the back of the fence?
A They were bringing long firearms.
 Q Did you recognize these persons?
A I can clearly recognize one and the 3 persons[.] I can identify them, if I can see them again.
Q If you are shown these persons, can you recognize them? Can you name these persons?
A No, sir. Only their facial appearance.
Q What about the 3 persons?
A Thats why the 3 persons, I do not know them. I can recognize only their facial appearance.
Q What about one person?
A Yes, sir.
Q What is the name of the person?
A Roling Sabalones.
Q If Roling Sabalones is inside the courtroom, can you recognize Roling Sabalones?
A Yes, sir, he is around.
Q Can you point to Roling Sabalones?
A Yes, he is there (The witness pointing to the person who answered the name of Roling Sabalones).
Q I would like [you] again to please look around and see, if those persons whom you know through their faces, if
they are here around?
A The two of them (The witness pointing to the 2 persons, who, when asked, answered that his name [was] Teofilo
Beronga and the other [was] Alegarbes).
Indeed, we have carefully waded through the voluminous records of this case and the testimonies of all the fifty-
nine witnesses, and we find that the prosecution has presented the required quantum of proof to establish that
appellants are indeed guilty as charged. Appellants arguments, as we shall now discuss, fail to rebut this conclusion.

Positive Identification

Appellants allege that the two witnesses could not have properly identified the appellants because, after the first
burst of shooting, they both crouched down, such that they could not have seen the faces of their assailants. This
contention does not persuade. Both eyewitnesses testified that the firing was not continuous; thus, during a lull in the
firing, they raised their heads and managed a peek at the perpetrators. Edwin Santos testified as follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard the successive shots, [and] you again raised your head. Is that
correct?
A There were times that the shots were not in succession and continuous and that was the time I raised my head
again.[20]
Like Santos, Rogelio Presores also stooped down when the firing started, but he raised his head during a break
in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard that one shot?
A So, after the first shot, we looked towards the direction we were facing and when we heard the second shot, that
was the time we stooped down.[21]
 He further testified:
Atty. Acido: [Counsel for Appellant Sabalones]
Q And you said you stooped down inside the car when you heard the first firing to the jeep. Is that what you want
the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots to the car as you said you stooped down inside the car?
A The bursts of gunfire stopped for a while and that was the time I reared of [sic] my head.
Q And that was the first time you saw them?
A Yes, sir.[22]
The records clearly show that two vehicles proceeded to the house of Stephen Lim on that fateful day. The first
was the jeep where Alfredo Nardo, Glenn Tiempo and Rey Bolo were riding. About three to four meters behind was
the second car carrying Nelson Tiempo, Guillermo Viloria, Rogelio Oliveros and the two prosecution witnesses --
Edwin Santos and Rogelio Presores.[23] As stated earlier, said witnesses attested to the fact that after the first volley of
shots directed at the jeep, they both looked at the direction where the shots were coming from, and they saw their
friends in the jeep falling to the ground, as well as the faces of the perpetrators. [24] It was only then that a rapid
succession of gunshots were directed at them, upon which they started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had a good look at them after the initial burst of
shots. We stress that the normal reaction of a person is to direct his sights towards the source of a startling shout or
occurrence. As held in People v. Dolar,[25] the most natural reaction for victims of criminal violence is to strive to see
the looks and faces of their assailants and to observe the manner in which the crime is committed.
In bolstering their claim that it was impossible for the witnesses to have identified them, appellants further aver
that the crime scene was dark, there being no light in the lampposts at the time. To prove that the service wire to the
street lamps at the Mansueto Compound was disconnected as early as December 1984 and reconnected only on June
27, 1985, they presented the testimonies of Vicente Cabanero, [26] Remigio Villaver,[27] Fredo Canete[28]and Edward
Gutang.[29] The trial court, however, did not lend weight to said testimonies, preferring to believe the statement of
other prosecution witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies of defense witnesses. Fredo Canete of the
Visayan Electric Company (VECO), for instance, admitted that it was so easy to connect and disconnect the lights. He
testified thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually use in cutting the electrical connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need xxx very sophisticated instruments to disconnect the lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to conduct the disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
 A That is if they are connected with the Visayan Electric Company.
Q What I mean is that, can the cutting be done by any ordinary electrician?
A Yes, sir.[30]
Said witness even admitted that he could not recall if he did in fact cut the electrical connection of the Mansueto
Compound.[31] The Court of Appeals further noted that none of the above witnesses were at the crime scene at or about
the exact time that the ambush occurred. Thus, none was in a position to state with absolute certainty that there was
allegedly no light to illuminate the gunmen when they rained bullets on the victims. [32]
Even assuming arguendo that the lampposts were not functioning at the time, the headlights of the jeep and the
car were more than sufficient to illuminate the crime scene. [33]The Court has previously held that the light from the
stars or the moon, an oven, or a wick lamp or gasera can give ample illumination to enable a person to identify or
recognize another.[34] In the same vein, the headlights of a car or a jeep are sufficient to enable eyewitnesses to identify
appellants at the distance of 4 to 10 meters.

Extrajudicial Statement of Beronga

Appellants insist that Berongas extrajudicial statement was obtained through violence and intimidation. Citing
the res inter alios acta rule, they also argue that the said statement is inadmissible against Sabalones. Specifically,
they challenge the trial courts reliance on the following portions of Berongas statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed [if] Roling and his companions prepared
themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody called up by telephone looking for Roling,
and this was answered by Roling but we did not know what they were conversing about and then Roling went
back to the house of Junior after answering the phone. And after more than two hours, we heard the sound
of engines of vehicles arriving, and then Meo, the man who was told by Roling to guard, shouted saying: They
are already here[;] after that, Roling came out carrying a carbine accompanied by Tsupe, and not long after
we heard gunshots and because of that we ran towards the house where the wake was. But before the gun-
shots, I heard Pedring Sabalones father of Roling saying: You clarify, [t]hat you watch out for mistake[n] in
identity, and after that shout, gunshots followed. [sic] Then after the gun-shots Roling went back inside still
carrying the carbine and shouted: GATHER THE EMPTY SHELLS AND MEO[,] YOU BRING A
FLASHLIGHT, and then I was called by Meo to help him gather the empty shells of the carbine and also our
third companion to gather the empty shells.
These arguments have no merit. In the first place, it is well to stress that appellants were convicted based
primarily on the positive identification of the two survivors, Edwin Santos and Rogelio Presores, and not only on the
extrajudicial statement, which merely corroborates the eyewitness testimonies. Thus, said arguments have no
relevance to this case. As the Court held in People vs. Tidula:[35] Any allegation of violation of rights during custodial
investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from
the accused becomes the basis of their conviction.
In any case, we sustain the trial courts holding, as affirmed by the Court of Appeals, that the extrajudicial
statement of Beronga was executed in compliance with the constitutional requirements. [36] Extrajudicial confessions,
especially those which are adverse to the declarants interests are presumed voluntary, and in the absence of conclusive
evidence showing that the declarants consent in executing the same has been vitiated, such confession shall be
upheld.[37]
The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows that the appellant was apprised
of his constitutional rights to remain silent and to have competent and independent counsel of his own choice.[38] Said
witness also stated that Beronga was assisted by Atty. Marcelo Guinto during the custodial investigation.[39] In fact,
Atty. Guinto also took the witness stand and confirmed that Appellant Beronga was informed of his rights, and that
the investigation was proper, legal and not objectionable.Indeed, other than appellants bare allegations, there was no
showing that Berongas statement was obtained by force or duress. [40]
 Equally unavailing is appellants reliance on the res inter alios acta rule under Section 30, Rule 130 of the Rules
of Court, which provides:

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.

Appellants assert that the admission referred to in the above provision is considered to be against a co-conspirator
only when it is given during the existence of the conspiracy.They argue that Berongas statement was made after the
termination of the conspiracy; thus, it should not be admitted and used against Sabalones.
The well-settled rule is that the extrajudicial confession of an accused is binding only upon himself and is not
admissible as evidence against his co-accused, it being mere hearsay evidence as far as the other accused are
concerned.[41] But this rule admits of exception. It does not apply when the confession, as in this case, is used as
circumstantial evidence to show the probability of participation of the co-accused in the killing of the victims[42] or
when the confession of the co-accused is corroborated by other evidence.[43]
Berongas extrajudicial statement is, in fact, corroborated by the testimony of Prosecution Witness Jennifer
Binghoy. Pertinent portions of said testimony are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were sitting with Roling Sabalones, what were they
doing?
A They were gathered in one table and they were conversing with each other.
xxxxxxxxx
Q On that same date, time and place, at about 10:00 [i]n the evening, can you remember if there was unusual
incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing Velez was shot.
Q That [a] certain Nabing Velez was shot? What else xxx transpired?
A I observed that their reactions were so queer, - as if they were running.
xxxxxxxxx
Q In that evening of June 1, 1985, when you went there at the house of Jun Sabalones, have you seen an armalite?
A Yes, sir.
Q Where did you see this armalite?
A At the table where they were conversing.
Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxxxxxxxx
Q This armalite that you saw, - how far was this in relation to the groups of Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked xxx through the window and saw there were two vehicles and there were bursts of gunfire,
what happened after that?
A I did not proceed to look xxx through the window because I stooped down.
Q When you stooped down, what happened?
 A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to the house of Sabalones.
Q While they were going to the direction of the house of Sabalones, what transpired?
A I saw 5 to 6 persons coming from the highway and looking to the jeep, and before they reached the jeep,
somebody shouted that its ours.
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion [when] wives were advising their husbands to go home?
A They were really in chaos.[44]
A careful reading of her testimony buttresses the finding of the trial court that Rolusape Sabalones and his friends
were gathered at one table, conversing in whispers with each other, that there were two rifles on top of the table, and
that they became panicky after hearing of the death of Nabing Velez on the radio. Hence, the observation of the trial
court that they went to their grisly destination amidst the dark and positioned themselves in defense of his turf against
the invasion of a revengeful gang of supporters of the recently slain Nabing Velez. [45]

Alleged Inconsistencies

Appellants also allege that the prosecution account had inconsistencies relating to the number of shots heard, the
interval between gunshots and the victims positions when they were killed. These, however, are minor and
inconsequential flaws which strengthen, rather than impair, the credibility of said eyewitnesses. Such harmless errors
are indicative of truth, not falsehood, and do not cast serious doubt on the veracity and reliability of complainants
testimony.[46]
Appellants further claim that the relative positions of the gunmen, as testified to by the eyewitnesses, were
incompatible with the wounds sustained by the victims. They cite the testimony of Dr. Ladislao Diola, who conducted
the autopsy on Glenn Tiempo. He declared that the victim must necessarily be on a higher level than the assailant, in
the light of the path of the bullet from the entrance wound to where the slug was extracted. This finding, according to
appellant, negates the prosecutions account that the appellants were standing side by side behind a wall when they
fired at the victims. If standing, appellants must have been on a level higher than that of the occupants of the vehicles;
if beside each other, they could not have inflicted wounds which were supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were sitting still when they were fired upon, and
that they froze in the same position during and after the shooting. This has no testimonial foundation. On the contrary,
it was shown that the victims ducked and hid themselves, albeit in vain, when the firing began. After the first volley,
they crouched and tried to take cover from the hail of bullets. It would have been unnatural for them to remain upright
and still in their seats. Hence, it is not difficult to imagine that the trajectories of the bullet wounds varied as the victims
shifted their positions. We agree with the following explanation of the Court of Appeals:
 The locations of the entry wounds can readily be explained. xxx Glenn Tiempo, after looking in the direction of
the explosion, turned his body around; and since the ambushers were between the jeep and the car, he
received a bullet in his right chest (wound no. 1) which traveled to the left. As to wound No. 2, it can be
explained by the spot where Major Tiempo found his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who were ambushed and [you] were able to return the car, what did
you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area or to the place where my fallen son was
located and when we reached x x x the place, I saw my fallen son [in] a kneeling position where both knees
[were] touching the ground and the toes also and the forehead was touching towards the ground. (TSN, Feb.
12, 1988, p. 6)
In such position, the second bullet necessarily traveled upwards in relation to the body, and thus the entry wound
should be lower than the exit wound. There is no showing that both wounds were inflicted at the same time.[47]
In any event, the witnesses saw that the appellants were the gunmen who were standing side by side firing at
them. They could have been in a different position and in another hiding place when they first fired, but this is not
important. They were present at the crime scene, and they were shooting their rifles at the victims.

Aberratio Ictus

Appellants likewise accuse the trial court of engaging in conjecture in ruling that there was aberratio ictus in
this case. This allegation does not advance the cause of the appellants. It must be stressed that the trial court relied on
the concept of aberratio ictus to explain why the appellants staged the ambush, not to prove that appellants did in fact
commit the crimes. Even assuming that the trial court did err in explaining the motive of the appellants, this does not
detract from its findings, as affirmed by the Court of Appeals and sustained by this Court in the discussion above, that
the guilt of the appellants was proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so ruling. The conclusion of the trial court and the
Court of Appeals that the appellants killed the wrong persons was based on the extrajudicial statement of Appellant
Beronga and the testimony of Jennifer Binghoy. These pieces of evidence sufficiently show that appellants believed
that they were suspected of having killed the recently slain Nabing Velez, and that they expected his group to retaliate
against them. Hence, upon the arrival of the victims vehicles which they mistook to be carrying the avenging men of
Nabing Velez, appellants opened fire. Nonetheless, the fact that they were mistaken does not diminish their
culpability. The Court has held that mistake in the identity of the victim carries the same gravity as when the accused
zeroes in on his intended victim.[48]
Be that as it may, the observation of the solicitor general on this point is well-taken. The case is better
characterized as error in personae or mistake in the identity of the victims, rather than aberratio ictus which means
mistake in the blow, characterized by aiming at one but hitting the other due to imprecision in the blow.

Second Issue:

Denial and Alibi

Appellants decry the lower courts disregard of their defense of alibi. We disagree. As constantly enunciated by
this Court, the established doctrine requires the accused to prove not only that he was at some other place at the time
of the commission of the crime, but that it was physically impossible for him at the time to have been present at
the locus criminis or its immediate vicinity.[49] This the appellants miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his residence in Lapulapu City, which was
not shown to be so remote and inaccessible that it precluded his presence in Mansueto Subdivision. The alibi of
Sabalones is even more unworthy of belief; he sought to establish that he was a mere 20-25 meters away from the
scene of the crime. He was allegedly in the house of his brother who was lying in state, which was so near the ambush
site that some of the defense witnesses even testified that they were terrified by the gunfire. Clearly, appellants failed
to establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive identification of the appellants. [50] As aptly held
by this Court in People v. Nescio:[51]

Alibi is not credible when the accused-appellant is only a short distance from the scene of the crime. The defense of
alibi is further offset by the positive identification made by the prosecution witnesses. Alibi, to reiterate a well-
settled doctrine, is accepted only upon the clearest proof that the accused-appellant was not or could not have been
at the crime scene when it was committed.

Flight

Appellants further object to the finding that Sabalones, after the incident, made himself scarce from the place of
commission. He left for Manila, thence Mindanao on the supposition that he want[ed] to escape from the wrath of
Maj. Tiempo and his men for the death of Glenn Tiempo and the near fatal shooting of the other son or from the
supporters of Nabing Velez. x x x On his supposedly borrowed freedom, he jumped bail and hid himself deeper into
Mindanao, under a cloak of an assumed name. Why, did his conscience bother him for comfort? [52]
Appellants rationalized that Sabalones was forced to jump bail in order to escape two groups, who were allegedly
out to get him, one of Nabing Velez and the other of Major Tiempo. Their ratiocination is futile. It is well-
established that the flight of an accused is competent evidence to indicate his guilt, and flight, when unexplained, is a
circumstance from which an inference of guilt may be drawn.[53] It must be stressed, nonetheless, that appellants were
not convicted based on legal inference alone but on the overwhelming evidence presented against them.

Third Issue:

Crime and Punishment

We agree with the appellate court that accused-appellants are guilty of murder for the deaths of Glenn Tiempo
and Alfredo Nardo. The allegation of treachery as charged in the Information was duly proven by the
prosecution. Treachery is committed when two conditions concur, namely, that the means, methods, and forms of
execution employed gave the person attacked no opportunity to defend himself or to retaliate; and that such means,
methods and forms of execution were deliberately and consciously adopted by the accused without danger to his
person.[54] These requisites were evidently present when the accused, swiftly and unexpectedly, fired at the victims
who were inside their vehicles and were in no position and without any means to defend themselves.
The appellate court also correctly convicted them of frustrated murder for the injuries sustained by Nelson
Tiempo, Rey Bolo and Rogelio Presores. As evidenced by the medical certificates and the testimony of Dr. Miguel
Mancao who attended to the victims, Nelson Tiempo sustained a neck wound which completely shattered his trachea
and rendered him voiceless, as well as a wound on the right chest which penetrated his axilla but not his chest
cavity.[55] Rey Bolo sustained three injuries which affected his clavicle, ribs and lungs. [56] Rogelio Presores, on the
other hand, sustained an injury to his lungs from a bullet wound which entered his right chest and exited through his
back.[57]
 The wounds sustained by these survivors would have caused their death had it not been for the timely medical
intervention. Hence, we sustain the ruling of the Court of Appeals that appellants are guilty of three counts of frustrated
murder.
We also uphold the Court of Appeals modification of the penalty for murder, but not its computation of the
sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty of fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal (medium), as minimum, to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal (maximum), as maximum. This is incorrect. Under Article 248 of the Revised Penal Code,
the imposable penalty is reclusion temporal, in its maximum period, to death. There being no aggravating or
mitigating circumstance, aside from the qualifying circumstance of treachery, the appellate court correctly
imposed reclusion perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for each of the three counts of frustrated
murder. It sentenced appellants to imprisonment of ten years of prision mayor (medium) as minimum to seventeen
years and four months of reclusion temporal (medium) as maximum. It modified the trial courts computation of eight
(8) years of prision mayor (minimum), as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated felony is the next lower in degree than
that prescribed by law for the consummated felony x x x. Theimposable penalty for frustrated murder, therefore,
is prision mayor in its maximum period to reclusion temporal in its medium period.[58] Because there are no
aggravating or mitigating circumstance as the Court of Appeals itself held,[59] the penalty prescribed by law should be
imposed in its medium period. With the application of the Indeterminate Sentence Law, the penalty for frustrated
murder should be 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court correctly ordered the payment of P50,000
as indemnity to the heirs of each of the two murdered victims.In light of current jurisprudence, this amount is awarded
without need of proof other than the fact of the victims death.[60] The trial court and the CA, however, erred in awarding
indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and Rey Bolo. There is no basis, statutory or
jurisprudential, for the award of a fixed amount to victims of frustrated murder. Hence, they are entitled only to the
amounts of actual expenses duly proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck which shattered his trachea, should be
awarded indemnity of P21,594.22 for his medical expenses.This is evidenced by a statement of account from Cebu
Doctors Hospital.[61]
Rogelio Presores, who was likewise treated for gunshot wound in the same hospital, presented a statement of
account amounting to P5,412.69 for his hospitalization.[62]Hence, he is likewise entitled to indemnity in the said
amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the treatment of his gunshot wounds, as
evidenced by a statement of account from the same hospital.[63]This amount should be awarded to him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is AFFIRMED. However, the penalties are
hereby MODIFIED as follows:

1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are each hereby sentenced to reclusion
perpetua and to indemnify, jointly and severally, the heirs of the deceased, Glenn Tiempo, in the sum of P50,000;

2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are each hereby sentenced to reclusion
perpetua and to indemnify, jointly and severally, the heirs of the deceased, Alfredo Nardo, in the sum of P50,000;

3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-appellants are each hereby sentenced
to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally pay the victim, Rey Bolo, in the sum of P9,431.10 as
actual damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-appellants are hereby sentenced to
suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the victim, Rogelio Presores, in the sum
of P5,412.69 for actual damages;

5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-appellants are hereby sentenced to
suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the victim, Nelson Tiempo, in the sum of
P21,594.22 as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and Local Government and the Secretary of
Justice so that Accused Eufemio Cabanero may be brought to justice.
Costs against appellants.
SO ORDERED.
 EN BANC

G.R. No. L-38773 December 19, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. GINES ALBURQUERQUE Y

SANCHEZ, Defendant-Appellant.

Gibbs and McDonough and Roman Ozaeta, for appellant.

Office of the Solicitor-General Hilado for appellee.

AVANCEÑA, C.J.: chanrobles virtual law library

The judgment appealed from finds the appellants Gines Alburquerque guilty of the crime of homicide committed on
the person of Manuel Osma and sentences him to eight years and one day of prision mayor, and to indemnify the
heirs of the deceased in the sum of P1,000, with costs.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant herein, who is a widower of fifty-five years of age and father of nine living children, has been
suffering from partial paralysis for some time, walks dragging one leg and has lost control of the movement of his
right arm. He has been unable to work since he suffered the stroke of paralysis. One of his daughters was named
Maria and another, are married, while still another one is a nun. With the exemption of the other married daughter
and the nun, of all of them, including the appellant, live with Maria upon whom they depend for
support.chanroblesvirtualawlibrary chanrobles virtual law library

Among the daughters living with Maria, one named Pilar became acquainted and had intimate relations later with
the deceased Manuel Osma about the end of the year 1928. It was then that the appellant became acquainted with the
deceased who frequently visited Pilar in his house. The relations between Pilar and the deceased culminated in
Pilar's giving birth to a child. The appellant did not know that his daughter's relations with the deceased had gone to
such extremes, that he had to be deceived with the information that she had gone to her godfather's house in
Singalong, when in fact she had been taken to the Chinese Hospital for delivery. The appellant learned the truth only
when Pilar returned home with her child.chanroblesvirtualawlibrary chanrobles virtual law library

Naturally the appellant was deeply affected by this incident, since which time he has appeared sad and worried not
only because of the dishonor it brought upon his family but also because the child meant an added burden to Maria
upon whom they all depended for support. For some time the appellant wrote letters, that at times were hostile and
threatening and at other times entreating the deceased to legitimize his union with Pilar by marrying her, or at least,
to support her and his child. Although the deceased agreed to give the child a monthly allowance by way of support,
he never complied with his promise.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant was in such a mood when he presented himself one day at the office where the deceased worked and
asked leave of the manager thereof to speak to Osma. They both went downstairs. What happened later, nobody
witnessed. But the undisputed fact is that on that occasion the appellant inflicted a wound at the base of the neck of
the deceased, causing his death.chanroblesvirtualawlibrary chanrobles virtual law library

After excluding the improbable portions thereof, the court infers from the testimony of the appellant that he
proposed to said deceased to marry his daughter and that, upon hearing that the latter refused to do so, he whipped
out his penknife. Upon seeing the appellant's attitude, the deceased tried to seize him by the neck whereupon the
said appellant stabbed him on the face with the said penknife. Due to his lack of control of the movement of his arm,
the weapon landed on the base of the neck of the deceased.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court found that the appellant did not intend to cause so grave an injury as the death of the deceased. We
find that his conclusion is supported by the evidence. In his testimony the appellant emphatically affirmed that he
only wanted to inflict a wound that would leave a permanent scar on the face of the deceased, or one that would
compel him to remain in the hospital for a week or two but never intended to kill him, because then it would
frustrate his plan of compelling him to marry or, at least, support his daughter. The appellant had stated this
intention in some of his letters to the deceased by way of a threat to induce him to accept his proposal for the benefit
of his daughter. That the act of the appellant in stabbing the deceased resulted in the fatal wound at the base of his
neck, was due solely to the fact hereinbefore mentioned that appellant did not have control of his right arm on
account of paralysis and the blow, although intended for the face, landed at the base of the
neck.chanroblesvirtualawlibrary chanrobles virtual law library

Therefore, the mitigating circumstance of lack of intention to cause so grave an injury as the death of the deceased
as well as those of his having voluntarily surrendered himself to the authorities, and acted under the influence of
passion and obfuscation, should be taken into consideration in favor of the
appellant.chanroblesvirtualawlibrary chanrobles virtual law library

Under the facts above stated, we cannot entertain the appellant's contention that he acted in legitimate self-defense
inasmuch as he provoked and commenced the aggression by whipping out and brandishing his
penknife.chanroblesvirtualawlibrary chanrobles virtual law library

The defense likewise claims that, at all events, article 49 of the Revised Penal Code, which refers to cases where the
crime committed is different from that intended by the accused, should be applied herein. This article is a
reproduction of article 64 of the old Code and has been interpreted as applicable only in cases where the crime
befalls a different person (decisions of the Supreme Court of Spain of October 20, 1897, and June 28,1899), which is
not the case herein.chanroblesvirtualawlibrarychanrobles virtual law library

The facts as herein proven constitute the crime of homicide defined and penalized in article 249 of the Revised Penal
Code with reclusion temporal. In view of the concurrence therein of three mitigating circumstances without any
aggravating circumstance, the penalty next lower in degree, that is prision mayor, should be
imposed.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, pursuant to the provisions of Act No. 4103, the appellant is hereby sentenced to suffer the indeterminate
penalty of from one (1) year of prision correccional to eight (8) years and (1) day ofprision mayor, affirming the
judgment appealed from in all other respects, with the costs. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR
and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE
BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner
defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to
Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the
driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe
Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just
called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was
running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it
fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the
bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the
driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get
out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans
from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus.
There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the
driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the
vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten
men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all
but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned,
gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating
the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who
answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified
that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five
minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary
damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by
Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the
decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For
purposes of reference, we are reproducing the pertinent codal provisions:
 ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound
to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and
1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth
in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at
fault or to have acted negligently, unless they prove that they observed extraordinary diligence as
prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or
willful acts of the former's employees, although such employees may have acted beyond the scope of their
authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful
acts or negligence of other passengers or of strangers, if the common carrier's employees through the
exercise of the diligence of a good father of a family could have prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina
Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial
court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence
to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown
by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one
of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it
fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question is to what
degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning
of the bus, but rather, the fire that burned the bus, including himself and his co-passengers who were unable to leave
it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still
alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A
satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred.' And more comprehensively,
'the proximate legal cause is that acting first and producing the injury, either immediately or by setting
other events in motion, all constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground
to expect at the moment of his act or default that an injury to some person might probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical
injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or
if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still
contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present
case under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the
overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its
back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a
lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver
and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a
light with them, and coming as they did from a rural area where lanterns and flashlights were not available; and what
was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the
rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a
natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help.
What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver
and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth.
They, or at least, the driver should and must have known that in the position in which the overturned bus was,
gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside
from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance,
and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the
codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as
the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000)
PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other damages. We
also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs'
attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the able briefs
prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the
passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited
by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus
inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and
that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his
instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones,
as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not
have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently,
resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of
their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally
dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the
complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several
witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was
negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a matter of
justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be
furnished the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE
THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO
EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision
appealed is from hereby affirmed, with costs.
 THIRD DIVISION

[G.R. No. 75369. November 26, 1990.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERNANDO ILIGAN y JAMITO, EDMUNDO

ASIS y ILIGAN and JUAN MACANDOG (at large), Defendants, FERNANDO ILIGAN y JAMITO and
EDMUNDO ASIS y ILIGAN, Defendants-Appellants.

The Solicitor General for Plaintiff-Appellee.

Cesar R. Canonizado, for Defendants-Appellants.

SYLLABUS

1. REMEDIAL LAW; APPEAL; THROWS THE CASE OPEN FOR A COMPLETE REVIEW OF ALL ERRORS
AS MAY BE IMPUTABLE TO THE TRIAL COURT. — While the factual findings of the trial court are generally
given due respect by the appellate court, an appeal of a criminal case throws it open for a complete review of all
errors, by commission or omission, as may be imputable to the trial court. (People v. Valerio, Jr., L-4116, February
25, 1982, 112 SCRA 208, 231) In this instance, the lower court erred in finding that the maceration of one half of
the head of the victim was also caused by Iligan for the evidence on record point to a different conclusion. We are
convinced beyond peradventure that indeed, after Quiñones, Jr. had fallen from the bolo-hacking perpetrated by
Iligan, he was run over by a vehicle. This finding, however, does not in any way exonerate Iligan from liability for
the death of Quiñones, Jr.

2. CRIMINAL LAW; LIABILITY; REQUISITES THEREOF, PRESENT IN THE CASE AT BAR. — Under
Article 4 of the Revised Penal Code, criminal liability shall be incurred "by any person committing a felony (delito)
although the wrongful act done be different from that which he intended." Based on the doctrine that "el que es
causa de la causa es causa del mal causado" (he who is the cause of the cause is the cause of the evil caused),
(People v. Ural, G.R. No. L-30801, March 27, 1974, 56 SCRA 138, 144) the essential requisites of Article 4 are: (a)
that an intentional felony has been committed, and (b) that the wrong done to the aggrieved party be the direct,
natural and logical consequence of the felony committed by the offender. (People v. Mananquil, L-35574,
September 28, 1984, 132 SCRA 196, 207). We hold that these requisites are present in this case.

3. ID.; ID.; PROXIMATE LEGAL CAUSE, DEFINED. — The intentional felony committed was the hacking of the
head of Quiñones, Jr. by Iligan. That it was considered as superficial by the physician who autopsied Quiñones is
beside the point. What is material is that by the instrument used in hacking Quiñones, Jr. and the location of the
wound, the assault was meant not only to immobilize the victim but to do away with him as it was directed at a vital
and delicate part of the body: the head. (See: People v. Diana, 32 Phil. 344 [1915]). The hacking incident happened
on the national highway where vehicles are expected to pass any moment. One such vehicle passed seconds later
when Lukban and Zaldy Asis, running scared and having barely negotiated the distance of around 200 meters, heard
shouts of people. Quiñones, Jr., weakened by the hacking blow which sent him to the cemented highway, was run
over by a vehicle. Under these circumstances, we hold that while Iligan’s hacking of Quiñones, Jr.’s head might not
have been the direct cause, it was the proximate cause of the latter’s death. Proximate legal cause is defined as "that
acting first and producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the
final event in the chain immediately effecting the injury as a natural and probable result of the cause which first
acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom. (Urbano v. Intermediate Appellate Court, G.R. No. 72964, January 7, 1988, 157
SCRA 1 quoting Vda. De Bataclan v. Medina, 102 Phil. 181). In other words, the sequence of events from Iligan’s
assault on him to the time Quiñones, Jr. was run over by a vehicle is, considering the very short span of time
between them, one unbroken chain of events. Having triggered such events, Iligan cannot escape liability.

4. ID.; ALIBI; NOT CONSIDERED WHEN ACCUSED IS POSITIVELY IDENTIFIED BY WITNESSES. — We

agree with the lower court that the defense of alibi cannot turn the tide in favor of Iligan because he was positively
seen at the scene of the crime and identified by the prosecution witnesses. (People v. Pineda, G.R. No. 72400,
January 15, 1988, 157 SCRA 71).

5. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT PREMEDITATION, WRONGLY

APPRECIATED IN THE CASE AT BAR. — But we disagree with the lower court with regards to its findings on
the aggravating circumstances of treachery and evident premeditation. Treachery has been appreciated by the lower
court in view of the suddenness of the attack on the group of Quiñones, Jr. Suddenness of such attack, however,
does not by itself show treachery. (People v. Gadiano, L-31818, July 30, 1982, 115 SCRA 559) There must be
evidence that the mode of attack was consciously adopted by the appellant to make it impossible or hard for the
person attacked to defend himself. (People v. Crisostomo, L-32243, April 15, 1988, 160 SCRA 47). In this case, the
hacking of Edmundo Asis by Iligan followed by the chasing of the trio by the group of Iligan was a warning to the
deceased and his companions of the hostile attitude of the appellants. The group of Quiñones, Jr. was therefore
placed on guard for any subsequent attacks against them. (People v. Mercado, L-33492, March 30, 1988, 159 SCRA
455). The requisites necessary to appreciate evident premeditation have likewise not been met in this case. Thus, the
prosecution failed to prove all of the following: (a) the time when the accused determined to commit the crime; (b)
an act manifestly indicating that the accused had clung to their determination to commit the crime; and (c) the lapse
of sufficient length of time between the determination and execution to allow him to reflect upon the consequences
of his act. (People v. Batas, G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46).

6. ID.; CONSPIRACY; NOT SUFFICIENTLY CONSTITUTED BY MERE KNOWLEDGE, ACQUIESCENCE

OR APPROVAL OF THE ACT WITHOUT COOPERATION OR AGREEMENT TO COOPERATE NOR BY
MERE PRESENCE AT THE SCENE OF THE CRIME. — Absent any qualifying circumstances, Iligan must be
held liable only for homicide. Again, contrary to the lower court’s finding, proof beyond reasonable doubt has not
been established to hold Edmundo Asis liable as Iligan’s co-conspirator. Edmundo Asis did not take any active part
in the infliction of the wound on the head of Quiñones, Jr., which led to his running over by a vehicle and
consequent death. As earlier pointed out, the testimony that he was carrying a stone at the scene of the crime hardly
merits credibility being uncorroborated and coming from an undeniably biased witness. Having been the companion
of Iligan, Edmundo Asis must have known of the former’s criminal intent but mere knowledge, acquiescense or
approval of the act without cooperation or agreement to cooperate, is not enough to constitute one a party to a
conspiracy. There must be intentional participation in the act with a view to the furtherance of the common design
and purpose. (People v. Izon, 104 Phil. 690 [1958]) Such being the case, his mere presence at the scene of the crime
did not make him a co-conspirator, a co-principal or an accomplice to the assault perpetrated by Iligan. (Orobio v.
Court of Appeals, G.R. No. 57519, September 13, 1988, 165 SCRA 316) Edmundo Asis therefore deserves
exoneration.

7. ID.; HOMICIDE; PENALTY; ABSENT ANY MITIGATING CIRCUMSTANCE AND APPLYING THE
INDETERMINATE SENTENCE LAW. — There being no mitigating circumstance, the penalty imposable on
Iligan is reclusion temporal medium (Arts. 249 and 64, Revised Penal Code). Applying the Indeterminate Sentence
Law, the proper penalty is that within the range of prision mayor as minimum and reclusion temporal medium as
maximum. We find insufficient proof to warrant the award of P256,960 for the victim’s unrealized income and
therefore, the same is disallowed.

DECISION

FERNAN, J.:

In this appeal, uncle and nephew, Fernando Iligan and Edmundo Asis, seek a reversal of the decision of the then
Court of First Instance of Camarines Norte, Branch II 1 convicting them of the crime of murder and sentencing them
to suffer the penalty of reclusion perpetua and to indemnify the heirs of Esmeraldo Quiñones, Jr. in the amounts of
P30,000 for the latter’s death and P256,960 representing the victim’s unrealized income.

On October 21, 1980, the following information for murder was filed against Fernando Iligan, Edmundo Asis and
Juan Macandog:chanrobles.com.ph : virtual law library

"That on or about 3:00 a.m., August 4, 1980, at sitio Lico II, barangay Sto. Domingo, municipality of Vinzons,
province of Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court, the above named
accused, conspiring and mutually helping one another, with treachery and evident premeditation, one of the accused
Fernando Iligan armed with a bolo (sinampalok) and with deliberate intent to kill, did then and there wilfully,
unlawfully and feloniously, gang up and in a sudden unexpected manner, hacked Esmeraldo Quiñones, Jr., on his
face, thus causing fatal injuries on the latter’s face which resulted to (sic) the death of said Esmeraldo Quiñones.

"CONTRARY TO LAW."cralaw virtua1aw library

Juan Macandog was never apprehended and he remains at large. At their arraignment on January 12, 1981 Fernando
Iligan and Edmundo Asis pleaded not guilty to the crime charged. Thereafter, the prosecution presented the
following version of the commission of the crime.chanrobles.com.ph : virtual law library

At around 2:00 o’clock in the morning of August 4, 1980, Esmeraldo Quiñones, Jr. and his companions, Zaldy Asis
and Felix Lukban, were walking home from barangay Sto. Domingo, Vinzons, Camarines Norte after attending a
barrio fiesta dance. In front of the ricemill of a certain Almadrones, they met the accused Fernando Iligan, his
nephew, Edmundo Asis, and Juan Macandog. Edmundo Asis pushed ("winahi") them aside thereby prompting Zaldy
Asis to box him. 2 Felix Lukban quickly told the group of the accused that they had no desire to fight. 3 Fernando
Iligan, upon seeing his nephew fall, drew from his back a bolo and hacked Zaldy Asis but missed. Terrified, the trio
ran pursued by the three accused. They ran for about half an hour, passing by the house of Quiñones, Jr. They
stopped running only upon seeing that they were no longer being chased. After resting for a short while, Quiñones,
Jr. invited the two to accompany him to his house so that he could change to his working clothes and report for work
as a bus conductor. 4

While the trio were walking towards the house of Quiñones, Jr., the three accused suddenly emerged on the roadside
and without a word, Fernando Iligan hacked Quiñones, Jr. with his bolo hitting him on the forehead and causing him
to fall down. 5 Horrified, Felix Lukban and Zaldy Asis fled to a distance of 200 meters, but returned walking after
they heard shouts of people. Zaldy Asis specifically heard someone shout "May nadale na." 6

On the spot where Quiñones, Jr. was hacked, Zaldy Asis and Felix Lukban saw him already dead with his head
busted. 7 They helped the brother of Quiñones, Jr. in carrying him to their house. 8

That same day, August 4, 1980, the body of Quiñones, Jr. was autopsied at the Funeraria Belmonte in Labo,
Camarines Norte by the municipal health officer, Dr. Marcelito E. Abas. The postmortem examination report which
is found at the back of the death certificate reveals that Esmeraldo Quiñones, Jr., who was 21 years old when he
died, sustained the following injuries:jgc:chanrobles.com.ph

"1. Shock and massive cerebral hemorrhages due to multiple fracture of the entire half of the frontal left, temporal,
parietal and occipital bone of the head, with massive maceration of the brain tissue.

"2. Other findings — Incised wound at the right eyebrow, medial aspect measuring about 4 cms. in length, 0.5 cm.
in width and 0.5 cm. in depth, abrasion on the left shoulder and right side of the neck." 9

The death certificate also indicates that Quiñones, Jr. died of "shock and massive cerebral hemorrhages due to a
vehicular accident."cralaw virtua1aw library

The defendants denied having perpetrated the crime. They alleged that they were in their respective houses at the
time the crime was committed.chanrobles law library

Accused Fernando Iligan testified that at around midnight of August 4, 1980, he left his house to fetch his visitors at
the dance hall. 10 Along the way, he met his nephew, Edmundo Asis, whom he presumed was drunk. He invited his
nephew to accompany him to the dance hall. However, they were not able to reach their destination because
Edmundo was boxed by somebody whom he (Edmundo) sideswiped. 11 Instead, Fernando Iligan brought his
nephew home. 12 On their way, they were overtaken by Juliano Mendoza whom Fernando Iligan invited to his
house to help him cook. 13 After bringing his nephew home, Fernando Iligan and Juliano Mendoza proceeded to
Iligan’s house and arrived there between 1:30 and 2:00 o’clock in the morning of the same day. 14

Edmundo Asis corroborated Iligan’s testimony. He testified that while they were walking in front of the Almadrones
ricemill, he sideswiped someone whom he did not recognize because there were several persons around. He said,
"Sorry, pare" but the person to whom he addressed his apology boxed him on his left face. He fell down and Iligan
helped him. Later, Iligan accompanied him to his home in Lico II. 15 After Iligan and Juliano Mendoza had left his
house, he slept and woke up at 7:00 o’clock the following morning. 16

The defense made capital of the testimony of prosecution witness Dr. Abas to the effect that Quiñones, Jr. died
because of a vehicular accident. In ruling out said theory, however, the lower court, in its decision of May 7, 1986,
said:jgc:chanrobles.com.ph

"The accused, to augment their alibi, have pointed to this Court that the Certificate of Death have shown that the
victim’s death was caused by a vehicular accident. To this, notwithstanding, the Court cannot give credit for some
reasons. First, the fact of the alleged vehicular accident has not been fully established. Second, Esmeraldo Quiñones,
Sr., (the) father of the victim, testified that Dr. Abas told him that if his son was hacked by a bolo on the face and
then run over the entire head by a vehicle’s tire, then that hacking on the face could not be visibly seen on the head
(t.s.n., pp. 16-17, October 13, 1981) Third, Exhibit ‘2’ (the photograph of the victim taken immediately after his
body had been brought home) is a hard evidence. It will attestly (sic) show that the entire head was not crushed by
any vehicle. On the contrary, it shows that only half of the face and head, was damaged with the wound starting on a
sharp edge horizontally. There are contusions and abrasions on the upper left shoulder and on the neck while the
body downwards has none of it, while on the right forehead there is another wound caused by a sharp instrument.
Therefore, it is simple, that if the victim was run over by a vehicle, the other half portion of his head and downward
part of his body must have been likewise seriously damaged, which there are none." 17

The lower court also found that Iligan’s group conspired to kill anyone or all members of the group of the victim to
vindicate the boxing on the face of Edmundo Asis. It appreciated the aggravating circumstances of evident
premeditation and treachery and accordingly convicted Iligan and Edmundo Asis of the crime of murder and
imposed on them the aforementioned penalty.

Iligan and Edmundo Asis interposed this appeal professing innocence of the crime for which they were convicted.
For the second time, they attributed Quiñones, Jr.’s death to a vehicular accident.

No eyewitnesses were presented to prove that Quiñones, Jr. was run over by a vehicle. The defense relies on the
testimony of Dr. Abas, a prosecution witness, who swore that the multiple fracture on the head of Quiñones, Jr. was
caused by a vehicular accident 18 which opinion was earlier put in writing by the same witness in the postmortem
examination. Dr. Abas justified his conclusion by what he considered as tire marks on the victim’s left shoulder and
the right side of his neck. 19 He also testified that the incised wound located at the victim’s right eyebrow could
have been caused by a sharp bolo but it was so superficial that it could not have caused the victim’s death. 20

Circumstantial evidence on record indeed point to the veracity of the actual occurrence of the vehicular mishap. One
such evidence is the testimony of prosecution witness Zaldy Asis that when he helped bring home the body of
Quiñones, Jr., he told the victim’s father, Esmeraldo Quiñones, Sr. that "before Esmeraldo Quiñones (Jr.) was run
over by a vehicle, he was hacked by Fernando Iligan." 21 When asked why he mentioned an automobile, Zaldy Asis
said that he did not notice any vehicle around but he mentioned it "because his (Quiñones, Jr.) head was busted." 22
It is therefore not farfetched to conclude that Zaldy Asis had actual knowledge of said accident but for
understandable reasons he declined to declare it in court. Defense witness Marciano Mago, the barangay captain of
Sto. Domingo, also testified that when he went to the scene of the crime, he saw bits of the brain of the victim
scattered across the road where he also saw tire marks. 23

For its part, the prosecution, through the victim’s father, presented evidence to the effect that Iligan authored the
maceration of half of the victim’s head. Quiñones, Sr. testified that from their house, which was about five meters
away from the road, he saw Fernando Iligan holding a "sinampalok" as he, together with Edmundo Asis and Juan
Macandog, chased someone. During the second time that he saw the three accused, he heard Iligan say, "Dali, ayos
na yan." 24 Hence, the lower court concluded that the victim’s head was "chopped" resulting in the splattering of his
brain all over the place. 25 It should be emphasized, however, that the testimony came from a biased witness and it
was uncorroborated.

While the factual findings of the trial court are generally given due respect by the appellate court, an appeal of a
criminal case throws it open for a complete review of all errors, by commission or omission, as may be imputable to
the trial court. 26 In this instance, the lower court erred in finding that the maceration of one half of the head of the
victim was also caused by Iligan for the evidence on record point to a different conclusion. We are convinced
beyond peradventure that indeed, after Quiñones, Jr. had fallen from the bolo-hacking perpetrated by Iligan, he was
run over by a vehicle. This finding, however, does not in any way exonerate Iligan from liability for the death of
Quiñones, Jr.chanrobles.com : virtual law library

Under Article 4 of the Revised Penal Code, criminal liability shall be incurred "by any person committing a felony
(delito) although the wrongful act done be different from that which he intended." Based on the doctrine that "el que
es causa de la causa es causa del mal causado" (he who is the cause of the cause is the cause of the evil caused), 27
the essential requisites of Article 4 are: (a) that an intentional felony has been committed, and (b) that the wrong
done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender.
28 We hold that these requisites are present in this case.

The intentional felony committed was the hacking of the head of Quiñones, Jr. by Iligan. That it was considered as
superficial by the physician who autopsied Quiñones is beside the point. What is material is that by the instrument
used in hacking Quiñones, Jr. and the location of the wound, the assault was meant not only to immobilize the
victim but to do away with him as it was directed at a vital and delicate part of the body: the head. 29

The hacking incident happened on the national highway 30 where vehicles are expected to pass any moment. One
such vehicle passed seconds later when Lukban and Zaldy Asis, running scared and having barely negotiated the
distance of around 200 meters, heard shouts of people. Quiñones, Jr., weakened by the hacking blow which sent him
to the cemented highway, was run over by a vehicle.

Under these circumstances, we hold that while Iligan’s hacking of Quiñones, Jr.’s head might not have been the
direct cause, it was the proximate cause of the latter’s death. Proximate legal cause is defined as "that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in
the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some person might probably
result therefrom." 31 In other words, the sequence of events from Iligan’s assault on him to the time Quiñones, Jr.
was run over by a vehicle is, considering the very short span of time between them, one unbroken chain of events.
Having triggered such events, Iligan cannot escape liability.chanrobles law library

We agree with the lower court that the defense of alibi cannot turn the tide in favor of Iligan because he was
positively seen at the scene of the crime and identified by the prosecution witnesses. 32

But we disagree with the lower court with regards to its findings on the aggravating circumstances of treachery and
evident premeditation. Treachery has been appreciated by the lower court in view of the suddenness of the attack on
the group of Quiñones, Jr. Suddenness of such attack, however, does not by itself show treachery. 33 There must be
evidence that the mode of attack was consciously adopted by the appellant to make it impossible or hard for the
person attacked to defend himself. 34 In this case, the hacking of Edmundo Asis by Iligan followed by the chasing
of the trio by the group of Iligan was a warning to the deceased and his companions of the hostile attitude of the
appellants. The group of Quiñones, Jr. was therefore placed on guard for any subsequent attacks against them. 35

The requisites necessary to appreciate evident premeditation have likewise not been met in this case. Thus, the
prosecution failed to prove all of the following: (a) the time when the accused determined to commit the crime; (b)
an act manifestly indicating that the accused had clung to their determination to commit the crime; and (c) the lapse
of sufficient length of time between the determination and execution to allow him to reflect upon the consequences
of his act. 36
Absent any qualifying circumstances, Iligan must be held liable only for homicide. Again, contrary to the lower
court’s finding, proof beyond reasonable doubt has not been established to hold Edmundo Asis liable as Iligan’s co-
conspirator. Edmundo Asis did not take any active part in the infliction of the wound on the head of Quiñones, Jr.,
which led to his running over by a vehicle and consequent death. As earlier pointed out, the testimony that he was
carrying a stone at the scene of the crime hardly merits credibility being uncorroborated and coming from an
undeniably biased witness. Having been the companion of Iligan, Edmundo Asis must have known of the former’s
criminal intent but mere knowledge, acquiescense or approval of the act without cooperation or agreement to
cooperate, is not enough to constitute one a party to a conspiracy. There must be intentional participation in the act
with a view to the furtherance of the common design and purpose. 37 Such being the case, his mere presence at the
scene of the crime did not make him a co-conspirator, a co-principal or an accomplice to the assault perpetrated by
Iligan. 38 Edmundo Asis therefore deserves exoneration.

There being no mitigating circumstance, the penalty imposable on Iligan is reclusion temporal medium (Arts. 249
and 64, Revised Penal Code). Applying the Indeterminate Sentence Law, the proper penalty is that within the range
of prision mayor as minimum and reclusion temporal medium as maximum. We find insufficient proof to warrant
the award of P256,960 for the victim’s unrealized income and therefore, the same is disallowed.cralawnad

WHEREFORE, appellant Fernando Iligan y Jamito is hereby convicted of the crime of homicide for which he is
imposed the indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium as maximum and he shall indemnify the heirs
of Esmeraldo Quiñones, Jr. in the amount of fifty thousand pesos (P50,000). Appellant Edmundo Asis is hereby
acquitted of the crime charged against him. Costs against appellant Iligan.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 72964 January 7, 1988

FILOMENO URBANO, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the
then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of
the crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at
Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo
Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby
which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw
Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation
canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked
palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2
inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack.
Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting
Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack
and inflict further injury, his daughter embraced and prevented him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away
from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not
finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes
together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio,
Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian,
who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no
available medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a
medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981)
which reads:

TO WHOM IT MAY CONCERN:

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married,
residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the
following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.
 As to my observation the incapacitation is from (7-9) days period. This wound was presented to
me only for medico-legal examination, as it was already treated by the other doctor. (p. 88,
Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to
pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis
appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in
the police blotter (Exhibit A), to wit:

xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this
Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are
neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to
Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to
him and to this Office that this will never be repeated anymore and not to harbour any grudge
against each other. (p. 87, Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to
Javier at Urbano's house in the presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious
condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde
who personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed
the presence of a healing wound in Javier's palm which could have been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as
follows:

Date Diagnosis

11-14-80 ADMITTED due to trismus

adm. at DX TETANUS

1:30 AM Still having frequent muscle spasm. With diffi-

#35, 421 culty opening his mouth. Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

tion of respiration and HR after muscular

spasm.

02 inhalation administered. Ambo bag

resuscita-

tion and cardiac massage done but to no

avail.

Pronounced dead by Dra. Cabugao at 4:18

P.M.
 PMC done and cadaver brought home by
rela-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then
Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was
sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to
SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together
with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00
without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New
Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of
indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit
of Barangay Captain Menardo Soliven (Annex "A") which states:

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the
present having been re-elected to such position in the last barangay elections on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan
and other places of Central Luzon including San Fabian, a town of said province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the
ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the
canals and ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam leading to the canals and ditches
which will bring water to the ricefields, the water in said canals and ditches became shallow which
was suitable for catching mudfishes;

That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto
Jaravata;

That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching
fish in the shallow irrigation canals with some companions;

That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died
of tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability
shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from
that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by
him in violation of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas,
56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier
suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the
incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15,
1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of
Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said:

The claim of appellant that there was an efficient cause which supervened from the time the
deceased was wounded to the time of his death, which covers a period of 23 days does not deserve
serious consideration. True, that the deceased did not die right away from his wound, but the cause
of his death was due to said wound which was inflicted by the appellant. Said wound which was in
the process of healing got infected with tetanus which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw
because of the infection of the wound with tetanus. And there is no other way by which he could
be infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
Consequently, the proximate cause of the victim's death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences
of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel
78 Phil. 418).

Appellant's allegation that the proximate cause of the victim's death was due to his own negligence
in going back to work without his wound being properly healed, and lately, that he went to catch
fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a
desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound
had not yet healed, it is impossible to conceive that the deceased would be reckless enough to
work with a disabled hand. (pp. 20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own
negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when
after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to
harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the
time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the
time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the
wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:

xxx xxx xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American
Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred."And more
comprehensively, "the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in
the chain immediately effecting the injury as a natural and probable result of the cause which first
acted, under such circumstances that the person responsible for the first event should, as an
 ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably result therefrom." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was
wounded until his death which would exculpate Urbano from any liability for Javier's death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable
symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic
within 14 days. A short incubation period indicates severe disease, and when symptoms occur
within 2 or 3 days of injury the mortality rate approaches 100 percent.

Non-specific premonitory symptoms such as restlessness, irritability, and headache are

encountered occasionally, but the commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to
rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the
commonest manifestation of tetanus and is responsible for the familiar descriptive name of
lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions
called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the region of the injury. In
the vast majority, however, most muscles are involved to some degree, and the signs and
symptoms encountered depend upon the major muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as
the onset time. As in the case of the incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which
prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system
damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of
more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are
brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset
time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains
adequate even during spasms. The criteria for severe tetanus include a short incubation time, and
an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged,
generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-
1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period
of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano
used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is
more medically probable that Javier should have been infected with only a mild cause of tetanus because the
symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of
the wound. Therefore, the onset time should have been more than six days. Javier, however, died on the second day
from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant,
the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been
infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound
could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted
upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof
that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical
findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient
intervening cause later or between the time Javier was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for
failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which
the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the be of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made
possible, if there intervened between such prior or remote cause and the injury a distinct,
successive, unrelated, and efficient cause of the injury, even though such injury would not have
happened but for such condition or occasion. If no danger existed in the condition except because
of the independent cause, such condition was not the proximate cause. And if an independent
negligent act or defective condition sets into operation the instances which result in injury because
of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J.
pp. 931-932). (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the
records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this
respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of
barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the
medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential
Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16).

We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects
of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-
settled doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case
of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said:

xxx xxx xxx

... While the guilt of the accused in a criminal prosecution must be established beyond reasonable
doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29,
Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it
includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla
v. Court of Appeals, 129 SCRA 559).

The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of
the accused on the ground that his guilt has not been proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the same act or omission, has been explained by the
Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him
from civil liability is one of the most serious flaws in the Philippine legal
system. It has given use to numberless instances of miscarriage of justice, where
 the acquittal was due to a reasonable doubt in the mind of the court as to the
guilt of the accused. The reasoning followed is that inasmuch as the civil
responsibility is derived from the criminal offense, when the latter is not proved,
civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and
deplorable consequences. Such reasoning fails to draw a clear line of
demarcation between criminal liability and civil responsibility, and to determine
the logical result of the distinction. The two liabilities are separate and distinct
from each other. One affects the social order and the other, private rights. One is
for the punishment or correction of the offender while the other is for reparation
of damages suffered by the aggrieved party. The two responsibilities are so
different from each other that article 1813 of the present (Spanish) Civil Code
reads thus: "There may be a compromise upon the civil action arising from a
crime; but the public action for the imposition of the legal penalty shall not
thereby be extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be proved beyond
reasonable doubt. But for the purpose of indemnity the complaining party, why
should the offense also be proved beyond reasonable doubt? Is not the invasion
or violation of every private right to be proved only by a preponderance of
evidence? Is the right of the aggrieved person any less private because the
wrongful act is also punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the reform
under discussion. It will correct a serious defect in our law. It will close up an
inexhaustible source of injustice-a cause for disillusionment on the part of the
innumerable persons injured or wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However,
since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the
civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if
the heirs of the victim are so minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate
Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the
crime of homicide. Costs de oficio.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner,

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

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the
judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted
murder.

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting
with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed.

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all
armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner,
Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City and
her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired the
shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men
left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will
come back if (sic) you were not injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court
of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification
of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code
which provides:

Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.
 Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled
it with bullets made the crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts
were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was
intent. Further, in its Comment to the Petition, respondent pointed out that:

. . . The crime of murder was not consummated, not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than
petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal
Code where:

. . . it was necessary that the execution of the act has been commenced, that the person conceiving
the idea should have set about doing the deed, employing appropriate means in order that his
intent might become a reality, and finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not present, the law and the courts did not
hold him criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist
School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which prove inadequate, would constitute a felony against
person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9

Under this article, the act performed by the offender cannot produce an offense against person or property because:
(1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either
(a) inadequate or (b) ineffectual. 10

That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender
must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the
intended act 12 in order to qualify the act an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:

Legal impossibility would apply to those circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the law; (2) there is intention to perform the
physical act; (3) there is a performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. 14

The impossibility of killing a person already dead 15 falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat
pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17

The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although
in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with
intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that
the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the
accused of an attempt to kill. It held that:

The fact that the officer was not at the spot where the attacking party imagined where he was, and
where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of
criminal law in this country that where the criminal result of an attempt is not accomplished
simply because of an obstruction in the way of the thing to be operated upon, and these facts are
unknown to the aggressor at the time, the criminal attempt is committed.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the
latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court
explained that:

It was no fault of Strokes that the crime was not committed. . . . It only became impossible by
reason of the extraneous circumstance that Lane did not go that way; and further, that he was
arrested and prevented from committing the murder. This rule of the law has application only
where it is inherently impossible to commit the crime. It has no application to a case where it
becomes impossible for the crime to be committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in
short it has no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.

In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to
rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no
one can seriously doubt that the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist
was really present or not. The community suffers from the mere alarm of crime. Again: Where the
thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words,
excite apprehension that the evil; intention will be carried out, the incipient act which the law of
attempt takes cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter
was inside. However, at that moment, the victim was in another part of the house. The court convicted the accused
of attempted murder.

The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue
at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation
of impossible crimes.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:

. . . factual impossibility of the commission of the crime is not a defense. If the crime could have
been committed had the circumstances been as the defendant believed them to be, it is no defense
that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt.
In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law
governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the
offender intended to send a letter without the latter's knowledge and consent and the act was performed. However,
unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the
accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that
"elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and
the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention,
the Court held that the federal statutes did not contain such provision, and thus, following the principle of legality,
no person could be criminally liable for an act which was not made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the
offense of attempt irrespective of legal impossibility until such time as such legislative changes in
the law take place, this court will not fashion a new non-statutory law of criminal attempt.

To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the
substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as
an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible
of accomplishment, the actor cannot be held liable for any crime — neither for an attempt not for an impossible
crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it
only recognizes impossibility as a defense to a crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual
or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible
of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act
an impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4,
which makes a person criminally liable for an act "which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the
consummation of the offense will be treated as an accident independent of the actor's will which is an element of
attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of
an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences
him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by the
law, and to pay the costs.

SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION

GEMMA T. JACINTO, G.R. No. 162540

Petitioner,

Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

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

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of
the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming
petitioner's conviction of the crime of Qualified Theft, and its Resolution[2] dated March 5, 2004 denying petitioner's
motion for reconsideration.

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

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together
and mutually helping one another, being then all employees of MEGA FOAM INTERNATIONAL
INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the
aforesaid establishment, with grave abuse of trust and confidence reposed upon them with intent to
gain and without the knowledge and consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and deposited in their own account, Banco De Oro Check No.
0132649 dated July 14, 1997 in the sum of P10,000.00, representing payment made by customer
 Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid
stated amount of P10,000.00.

CONTRARY TO LAW.[3]

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

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

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to
inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained
that she had to call and relay the message through Valencia, because the Capitles did not have a phone; but they could
be reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino
to replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into
four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's
accountant, reported the matter to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner
a BDO check for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam. [4] Baby Aquino
further testified that, sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check
bounced.[5] Verification from company records showed that petitioner never remitted the subject check to Mega
Foam. However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as
replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but
explained that the check came into his possession when some unknown woman arrived at his house around the first
week of July 1997 to have the check rediscounted. He parted with his cash in exchange for the check without even
bothering to inquire into the identity of the woman or her address. When he was informed by the bank that the check
bounced, he merely disregarded it as he didnt know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an
entrapment operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted
with fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that
she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced
BDO check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to
have the check replaced with cash, but the plan did not push through. However, they agreed to meet again on August
21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline
Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not
to go with the group because she decided to go shopping. It was only petitioner, her husband, Ricablanca
and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from
the jeep and entered the premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However,
the cash she actually brought out from the premises was the P10,000.00 marked money previously given to her by
Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching the whole time.

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

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she
had stopped collecting payments from Baby Aquino for quite some time before her resignation from the company. She
further testified that, on the day of the arrest, Ricablanca came to her mothers house, where she was staying at that
time, and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-
natal check-up at the Chinese GeneralHospital, Ricablanca decided to hitch a ride with the former and her husband in
their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked them to
wait in their jeep, which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca
placed the money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never
part of her job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca
called her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby
Aquino. Valencia claims that she agreed to do so, despite her admission during cross-examination that she did not
know where Baby Aquino resided, as she had never been to said house. They then met at the house of petitioner's
mother, rode the jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said
place, Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes, Ricablanca came out and,
to her surprise,Ricablanca gave her money and so she even asked, What is this? Then, the NBI agents arrested them.

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

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

SO ORDERED.[7]

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

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma
Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.

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

1. Whether or not petitioner can be convicted of a crime not charged in the information;

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

 3. Whether or not the prosecution has proved petitioner's guilt beyond
reasonable doubt.[8]

The petition deserves considerable thought.

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

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case. In Intod, the accused, intending to
kill a person, peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no
harm came to him. The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court,
he was adjudged guilty only of an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to
Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent
portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

2. By any person performing an act which would be an offense against

persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate to
ineffectual means. (emphasis supplied)
 Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed
or the aims sought are impossible. - When the person intending to commit an offense has already
performed the acts for the execution of the same but nevertheless the crime was not produced by
reason of the fact that the act intended was by its nature one of impossible accomplishment or
because the means employed by such person are essentially inadequate to produce the result desired
by him, the court, having in mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500
pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or
property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the
means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod[10] in this
wise:

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

That the offense cannot be produced because the commission of the offense is inherently impossible
of accomplishment is the focus of this petition. To be impossible under this clause, the act intended
by the offender must be by its nature one impossible of accomplishment. There must be either (1)
legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify
the act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.
xxxx

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

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor
or beyond his control prevent the consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his
hand in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is
empty.
Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case,
petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against
property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam
showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have
received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous
circumstance of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from
being produced. The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check was
eventually dishonored, and Mega Foam had received the cash to replace the value of said dishonored check.

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

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

xxxx

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

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same. x x x

x x x Unlawful taking, which is the deprivation of ones personal property, is the element which
produces the felony in its consummated stage. x x x [13]

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