EN BANC

[G.R. No. 496. December 31, 1902. ]

THE UNITED STATES, Complainant-Appellant, v. WILLIAM FOWLER ET AL., Defendants-

Appellees.

Assistant Attorney-General Constantino, for Appellant.

William Lane O’Neill, for Appellees.

SYLLABUS

1. CRIMINAL LAW; JURISDICTION; CRIMES ON HIGH SEAS. — Courts of First Instance of the
Philippines have no jurisdiction to take cognizance of crimes committed on the high seas on
board of a transport or other vessel not registered or licensed in the Philippines.

DECISION

TORRES, J. :

The two defendants have been accused of the theft of sixteen bottles of champagne of the value
of $20, on the 12th August, 1901, while on board the transport Lawton, then navigating the high
seas, which said bottles of champagne formed part of the cargo of the said vessel and were the
property of Julian Lindsay, and which were taken lucri causa, and with the intent to appropriate
the same, without violence or intimidation, and without the consent of the owner, against the
statute in the case made and provided.

The accused having been brought before the court, the prosecuting attorney being present on
behalf of the Government, counsel for the defendants presented a demurrer, alleging that the
Court of First Instance was without jurisdiction to try the crime charged, inasmuch as it
appeared from the information that the crime was committed on the high seas, and not in the
city of Manila, or within the territory comprising the Bay of Manila, or upon the seas within the
3-mile limit to which the jurisdiction of the court extends, and asked, upon these grounds, that
the case be dismissed.

This contention was opposed by the prosecuting attorney, who alleged that the court has original
jurisdiction in all criminal cases in which the penalty exceeds six month’s imprisonment, or a fine
of over $100; that, in accordance with the orders of the Military Governor and the Civil
Commission admiralty jurisdiction over all crimes committed on board vessels flying the flag of
the United States has been vested in the Courts of First Instance of the city of Manila. Among
other laws and orders he cited the order of August 14, 1898, and Acts Nos. 76 and 186 of the
United States Civil Commission. He argued that the President of the United States had
unquestionable authority to authorize the commanding general and the Civil Commission to
establish a judicial system with authority to take cognizance of maritime and admiralty causes,
citing a decision of the Supreme Court of the United States in support of this doctrine, which was
applicable to this Archipelago, which is now analogous to the status of some of the States of the
Union during the Mexican was and the war of secession.

The judge, however, by an order of the 14th of September, 1901, held that the court was
without jurisdiction to try the accused for the theft alleged to have been committed on the high
seas, sustained the demurrer, and ordered the discharge of the defendants, with the costs to the
Government. Against this order the prosecuting attorney appealed, and the case was brought
before this court.

This case deals with a theft committed on board a transport while navigating the high seas. Act
No. 136 of the organic law, as well as Act No. 186 passed by the Civil Commission, and which
repealed the former law, Act No. 76, do not expressly confer jurisdiction or authority upon this
court to take cognizance of all crimes committed on board vessels on the high seas. While the
provisions of the law are clear and precise with respect to civil admiralty or maritime cases, this
is not true with respect to criminal cases. If any doubt could arise concerning the true meaning
of the law applicable to the case, Act. No. 400 effectively dissipates such doubts.

This law, which is an addition to Act No. 136, by which the courts of justice of the Philippine
Islands were organized, in article 1 adds to article 56, consisting of seven paragraphs, another
paragraph numbered 8, which reads as follows: "Of all crimes and offenses committed on the
high seas or beyond the jurisdiction of any country, or within any of the navigable waters of the
Philippine Archipelago, on bard a ship or water craft of any kind registered or licensed in the
Philippine Islands in accordance with the laws thereof." The purpose of this law was to define the
jurisdiction of the Courts of First Instance in criminal cases for crimes committed on board
vessels registered or licensed in the Philippine Islands. The transport Lawton not being a vessel
of this class, our courts are without jurisdiction to take cognizance of a crime committed on
board the same.

Upon these grounds we consider that the order appealed should be affirmed, with the costs de
oficio. So ordered.

Arellano, C.J., Cooper, Smith, Willard, Mapa and Ladd, JJ., concur.
 

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5270 January 15, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
H. N. BULL, defendant-appellant.

Bruce & Lawrence, for appellant.

Office of the Solicitor-General Harvey, for appellee.

ELLIOTT, J.:

The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as amended
by section 1 of Act No. 275, and from the judgment entered thereon appealed to this court, where under proper
assignments of error he contends: (1) that the complaint does not state facts sufficient to confer jurisdiction
upon the court; (2) that under the evidence the trial court was without jurisdiction to hear and determine the
case; (3) that Act No. 55 as amended is in violation of certain provisions of the Constitution of the United
States, and void as applied to the facts of this case; and (4) that the evidence is insufficient to support the
conviction.

The information alleges:

That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was then and
there master of a steam sailing vessel known as the steamship Standard, which vessel was then and
there engaged in carrying and transporting cattle, carabaos, and other animals from a foreign port and
city of Manila, Philippine Islands; that the said accused H. N. Bull, while master of said vessel, as
aforesaid, on or about the 2d day of December, 1908, did then and there willfully, unlawfully, and
wrongly carry, transport, and bring into the port and city of Manila, aboard said vessel, from the port of
Ampieng, Formosa, six hundred and seventy-seven (677) head of cattle and carabaos, without
providing suitable means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to the said animals, in this, to wit, that the said H. N. Bull, master, as aforesaid,
did then and there fail to provide stalls for said animals so in transit and suitable means for trying and
securing said animals in a proper manner, and did then and there cause some of said animals to be
tied by means of rings passed through their noses, and allow and permit others to be transported loose
in the hold and on the deck of said vessel without being tied or secured in stalls, and all without
bedding; that by reason of the aforesaid neglect and failure of the accused to provide suitable means
for securing said animals while so in transit, the noses of some of said animals were cruelly torn, and
many of said animals were tossed about upon the decks and hold of said vessel, and cruelly wounded,
bruised, and killed.

All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.

Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine,
or other animals, from one port in the Philippine Islands to another, or from any foreign port to any port
within the Philippine Islands, shall carry with them, upon the vessels carrying such animals, sufficient
forage and fresh water to provide for the suitable sustenance of such animals during the ordinary period
occupied by the vessel in passage from the port of shipment to the port of debarkation, and shall cause
 such animals to be provided with adequate forage and fresh water at least once in every twenty-four
hours from the time that the animals are embarked to the time of their final debarkation.

By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof the
following:

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine,
or other animals from one port in the Philippine Islands to another, or from any foreign port to any port
within the Philippine Islands, shall provide suitable means for securing such animals while in transit so
as to avoid all cruelty and unnecessary suffering to the animals, and suitable and proper facilities for
loading and unloading cattle or other animals upon or from vessels upon which they are transported,
without cruelty or unnecessary suffering. It is hereby made unlawful to load or unload cattle upon or
from vessels by swinging them over the side by means of ropes or chains attached to the thorns.

Section 3 of Act No. 55 provides that —

Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully fails to
comply with the provisions of section one, shall, for every such failure, be liable to pay a penalty of not
less that one hundred dollars nor more that five hundred dollars, United States money, for each offense.
Prosecution under this Act may be instituted in any Court of First Instance or any provost court
organized in the province or port in which such animals are disembarked.

1. It is contended that the information is insufficient because it does not state that the court was sitting at a port
where the cattle were disembarked, or that the offense was committed on board a vessel registered and
licensed under the laws of the Philippine Islands.

Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any provost court
organized in the province or port in which such animals are disembarked, and there is nothing inconsistent
therewith in Act No. 136, which provides generally for the organization of the courts of the Philippine Islands.
Act No. 400 merely extends the general jurisdiction of the courts over certain offenses committed on the high
seas, or beyond the jurisdiction of any country, or within any of the waters of the Philippine Islands on board a
ship or water craft of any kind registered or licensed in the Philippine Islands, in accordance with the laws
thereof. (U.S.vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be exercised by the Court of First Instance in
any province into which such ship or water upon which the offense or crime was committed shall come after
the commission thereof. Had this offense been committed upon a ship carrying a Philippine registry, there
could have been no doubt of the Jurisdiction of the court, because it is expressly conferred, and the Act is in
accordance with well recognized and established public law. But the Standard was a Norwegian vessel, and it
is conceded that it was not registered or licensed in the Philippine Islands under the laws thereof. We have
then the question whether the court had jurisdiction over an offense of this character, committed on board a
foreign ship by the master thereof, when the neglect and omission which constitutes the offense continued
during the time the ship was within the territorial waters of the United States. No court of the Philippine Islands
had jurisdiction over an offenses or crime committed on the high seas or within the territorial waters of any
other country, but when she came within 3 miles of a line drawn from the headlines which embrace the
entrance to Manila Bay, she was within territorial waters, and a new set of principles became applicable.
(Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch.
1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject through the
proper political agency. This offense was committed within territorial waters. From the line which determines
these waters the Standard must have traveled at least 25 miles before she came to anchor. During that part of
her voyage the violation of the statue continued, and as far as the jurisdiction of the court is concerned, it is
immaterial that the same conditions may have existed while the vessel was on the high seas. The offense,
assuming that it originated at the port of departure in Formosa, was a continuing one, and every element
necessary to constitute it existed during the voyage across the territorial waters. The completed forbidden act
was done within American waters, and the court therefore had jurisdiction over the subject-matter of the
offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court, but the objection to the
jurisdiction raises the further question whether that jurisdiction is restricted by the fact of the nationality of the
ship. Every. Every state has complete control and jurisdiction over its territorial waters. According to strict legal
right, even public vessels may not enter the ports of a friendly power without permission, but it is now
conceded that in the absence of a prohibition such ports are considered as open to the public ship of all
friendly powers. The exemption of such vessels from local jurisdiction while within such waters was not
established until within comparatively recent times. In 1794, Attorney-General Bradford, and in 1796 Attorney-
General Lee, rendered opinions to the effect that "the laws of nations invest the commander of a foreign ship of
war with no exemption from the jurisdiction of the country into which he comes." (1, Op. U.S. Attys. Gen., 46,
87.) This theory was also supported by Lord Stowell in an opinion given by him to the British Government as
late as 1820. In the leading case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief
Justice Marshall said that the implied license under which such vessels enter a friendly port may reasonably be
construed as "containing exemption from the jurisdiction of the sovereign within whose territory she claims the
rights of hospitality." The principle was accepted by the Geneva Arbitration Tribunal, which announced that
"the priviledge of exterritoriality accorded to vessels of war has been admitted in the law of nations; not as an
absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between
nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256; Ortolan, Dip de la
Mer, 2. C.X.)

Such vessels are therefore permitted during times of peace to come and go freely. Local official exercise but
little control over their actions, and offenses committed by their crew are justiciable by their own officers acting
under the laws to which they primarily owe allegiance. This limitation upon the general principle of territorial
sovereignty is based entirely upon comity and convenience, and finds its justification in the fact that experience
shows that such vessels are generally careful to respect local laws and regulation which are essential to the
health, order, and well-being of the port. But comity and convenience does not require the extension of the
same degree of exemption to merchant vessels. There are two well-defined theories as to extent of the
immunities ordinarily granted to them, According to the French theory and practice, matters happening on
board a merchant ship which do not concern the tranquillity of the port or persons foreign to the crew, are
justiciable only by the court of the country to which the vessel belongs. The French courts therefore claim
exclusive jurisdiction over crimes committed on board French merchant vessels in foreign ports by one
member of the crew against another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le Droit
Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such
jurisdiction has never been admitted or claim by Great Britain as a right, although she has frequently conceded
it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.) Writers who
consider exterritoriality as a fact instead of a theory have sought to restrict local jurisdiction, but Hall, who is
doubtless the leading English authority, says that —

It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels that so soon
as the latter enter the ports of a foreign state they become subject to the local jurisdiction on all points
in which the interests of the country are touched. (Hall, Int. Law, p. 263.)

The United States has adhered consistently to the view that when a merchant vessel enters a foreign port it is
subject to the jurisdiction of the local authorities, unless the local sovereignty has by act of acquiescence or
through treaty arrangements consented to waive a portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178;
2 Moore, Int. Law Dig., sec. 204; article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice
Marshall, in the case of the Exchange, said that —

When merchant vessels enter for the purpose of trade, in would be obviously in convinient and
dangerous to society and would subject the laws to continual infraction and the government to
degradation if such individual merchants did not owe temporary and local allegiance, and were not
amendable to the jurisdiction of the country.

The Supreme Court of the United States has recently said that the merchant vessels of one country visiting the
ports of another for the purpose of trade, subject themselves to the laws which govern the ports they visit, so
long as they remain; and this as well in war as in peace, unless otherwise provided by treaty. (U.
S. vs. Diekelman, 92 U. S., 520-525.)

Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of commerce
and navigation between Sweden and Norway and the United States, of July 4, 1827, which concedes to the
consul, vice-consuls, or consular agents of each country "The right to sit as judges and arbitrators in such
differences as may arise between the captains and crews of the vessels belonging to the nation whose
interests are committed to their charge, without the interference of the local authorities, unless the conduct of
the crews or of the captains should disturb the order or tranquillity of the country." (Comp. of Treaties in Force,
1904, p. 754.) This exception applies to controversies between the members of the ship's company, and
particularly to disputes regarding wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168
Mass., 188.) The order and tranquillity of the country are affected by many events which do not amount to a
riot or general public disturbance. Thus an assault by one member of the crew upon another, committed upon
the ship, of which the public may have no knowledge whatever, is not by this treaty withdrawn from the
cognizance of the local authorities.

In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the vessel in
the port of Galveston, Texas. They were prosecuted before a justice of the peace, but the United States district
attorney was instructed by the Government to take the necessary steps to have the proceedings dismissed,
and the aid of the governor of Texas was invoked with the view to "guard against a repetition of similar
proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May 16, 1876;
Moore, Int. Law Dig.) It does not appear that this "quarrel" was of such a nature as to amount to a breach of
the criminal laws of Texas, but when in 1879 the mate for the Norwegian bark Livingston was prosecuted in the
courts of Philadelphia County for an assault and battery committed on board the ship while lying in the port of
Philadelphia, it was held that there was nothing in the treaty which deprived the local courts of jurisdiction.
(Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations were made through diplomatic channels
to the State Department, and on July 30, 1880, Mr. Evarts, Secretary of State, wrote to Count Lewenhaupt, the
Swedish and Norwegian minister, as follows:

I have the honor to state that I have given the matter careful consideration in connection with the views
and suggestion of your note and the provisions of the thirteenth article of the treaty of 1827 between the
United States and Sweden and Norway. The stipulations contained in the last clause of that article . . .
are those under which it is contended by you that jurisdiction is conferred on the consular officers, not
only in regard to such differences of a civil nature growing out of the contract of engagement of the
seamen, but also as to disposing of controversies resulting from personal violence involving offense for
which the party may be held amenable under the local criminal law.

This Government does not view the article in question as susceptible of such broad interpretation. The
jurisdiction conferred upon the consuls is conceived to be limited to their right to sit as judges or
abitratorsin such differences as may arise between captains and crews of the vessels, where such
differences do not involve on the part of the captain or crew a disturbance of the order or tranquillity of
the country. When, however, a complaint is made to a local magistrate, either by the captain or one or
more of the crew of the vessel, involving the disturbance of the order or tranquillity of the country, it is
competent for such magistrate to take cognizance of the matter in furtherance of the local laws, and
under such circumstances in the United States it becomes a public duty which the judge or magistrate
is not at liberty voluntarily to forego. In all such cases it must necessarily be left to the local judicial
authorities whether the procedure shall take place in the United States or in Sweden to determine if in
fact there had been such disturbance of the local order and tranquillity, and if the complaint is
supported by such proof as results in the conviction of the party accused, to visit upon the offenders
such punishment as may be defined against the offense by the municipal law of the place." (Moore, Int.
Law Dig., vol. 2, p. 315.)

The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on board a
merchant vessel by one member of the crew against another which amount to a disturbance of the order or
tranquillity of the country, and a fair and reasonable construction of the language requires un to hold that any
violation of criminal laws disturbs the order or traquillity of the country. The offense with which the appellant is
charged had nothing to so with any difference between the captain and the crew. It was a violation by the
master of the criminal law of the country into whose port he came. We thus find that neither by reason of the
nationality of the vessel, the place of the commission of the offense, or the prohibitions of any treaty or general
principle of public law, are the court of the Philippine Islands deprived of jurisdiction over the offense charged
in the information in this case.

It is further contended that the complaint is defective because it does not allege that the animals were
disembarked at the port of Manila, an allegation which it is claimed is essential to the jurisdiction of the court
sitting at that port. To hold with the appellant upon this issue would be to construe the language of the
complaint very strictly against the Government. The disembarkation of the animals is not necessary in order to
constitute the completed offense, and a reasonable construction of the language of the statute confers
jurisdiction upon the court sitting at the port into which the animals are bought. They are then within the
territorial jurisdiction of the court, and the mere fact of their disembarkation is immaterial so far as jurisdiction is
concerned. This might be different if the disembarkation of the animals constituted a constitutional element in
the offense, but it does not.

It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly andwillfully failed to provide suitable means for securing said animals while in transit, so
as to avoid cruelty and unnecessary suffering. The allegation of the complaint that the act was committed
willfully includes the allegation that it was committed knowingly. As said in Woodhouse vs. Rio Grande R.R.
Company (67 Texas, 416), "the word 'willfully' carries the idea, when used in connection with an act forbidden
by law, that the act must be done knowingly or intentionally; that, with knowledge, the will consented to,
designed, and directed the act." So in Wongvs. City of Astoria (13 Oregon, 538), it was said: "The first one is
that the complaint did not show, in the words of the ordinance, that the appellant 'knowingly' did the act
complained of. This point, I think, was fully answered by the respondent's counsel — that the words 'willfully'
and 'knowingly' conveyed the same meaning. To 'willfully' do an act implies that it was done by design — done
for a certain purpose; and I think that it would necessarily follow that it was 'knowingly' done." To the same
effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours with the present case.

The evidence shows not only that the defendant's acts were knowingly done, but his defense rests upon the
assertion that "according to his experience, the system of carrying cattle loose upon the decks and in the hold
is preferable and more secure to the life and comfort of the animals." It was conclusively proven that what was
done was done knowingly and intentionally.

In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary to state the
act or omission complained of as constituting a crime or public offense in ordinary and concise language,
without repitition. It need not necessarily be in the words of the statute, but it must be in such form as to enable
a person of common understanding to know what is intended and the court to pronounce judgment according
to right. A complaint which complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)

The Act, which is in the English language, impose upon the master of a vessel the duty to "provide suitable
means for securing such animals while in transit, so as to avoid all cruelty and unnecessary suffering to the
animals." The allegation of the complaint as it reads in English is that the defendant willfully, unlawfully, and
wrongfully carried the cattle "without providing suitable means for securing said animals while in transit, so as
to avoid cruelty and unnecessary suffering to the said animals in this . . . that by reason of the aforesaid
neglect and failure of the accused to provide suitable means for securing said animals were cruelty torn, and
many of said animals were tossed about upon the decks and hold of said vessels, and cruelty wounded,
bruised, and killed."

The appellant contends that the language of the Spanish text of the information does not charge him with
failure to provide "sufficient" and "adequate" means. The words used are "medios suficientes" and "medios
adecuados." In view of the fact that the original complaint was prepared in English, and that the word "suitable"
is translatable by the words "adecuado," "suficiente," and "conveniente," according to the context and
circumstances, we determine this point against the appellant, particularly in view of the fact that the objection
was not made in the court below, and that the evidence clearly shows a failure to provide "suitable means for
the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto seems to
rest upon a fundamentally erroneous conception of the constitutional law of these Islands. The statute
penalizes acts and ommissions incidental to the transportation of live stock between foreign ports and ports of
the Philippine Islands, and had a similar statute regulating commerce with its ports been enacted by the
legislature of one of the States of the Union, it would doubtless have been in violation of Article I, section 3, of
the Constitution of the United States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)

But the Philippine Islands is not a State, and its relation to the United States is controlled by constitutional
principles different from those which apply to States of the Union. The importance of the question thus
presented requires a statement of the principles which govern those relations, and consideration of the nature
and extent of the legislative power of the Philippine Commission and the Legislature of the Philippines. After
much discussion and considerable diversity of opinion certain applicable constitutional doctrines are
established.

The Constitution confers upon the United States the express power to make war and treaties, and it has the
power possessed by all nations to acquire territory by conquest or treaty. Territory thus acquired belongs to the
United States, and to guard against the possibility of the power of Congress to provide for its government being
questioned, the framers of the Constitution provided in express terms that Congress should have the power "to
dispose of and make all needful rules and regulations respecting territory and other property belonging to the
United States." (Art. IV, sec. 3, par. 3.) Upon the acquisition of the territory by the United States, and until it is
formally incorporated into the Union, the duty of providing a government therefor devolves upon Congress. It
may govern the territory by its direct acts, or it may create a local government, and delegate thereto the
ordinary powers required for local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual
procedure. Congress has provided such governments for territories which were within the Union, and for newly
acquired territory not yet incorporated therein. It has been customary to organize a government with the
ordinary separation of powers into executive, legislative, and judicial, and to prescribe in an organic act certain
general conditions in accordance with which the local government should act. The organic act thus became the
constitution of the government of the territory which had not been formally incorporated into the Union, and the
validity of legislation enacted by the local legislature was determined by its conformity with the requirements of
such organic act. (National Bank vs. Yankton, 11 Otto (U. S.), 129.) To the legislative body of the local
government Congress has delegated that portion of legislative power which in its wisdom it deemed necessary
for the government of the territory, reserving, however, the right to annul the action of the local legislature and
itself legislate directly for the territory. This power has been exercised during the entire period of the history of
the United States. The right of Congress to delegate such legislative power can no longer be seriously
questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370, 385.)

The Constitution of the United States does not by its own force operate within such territory, although the
liberality of Congress in legislating the Constitution into contiguous territory tended to create an impression
upon the minds of many people that it went there by its own force. (Downes vs. Bidwell, 182 U. S., 289.) In
legislating with reference to this territory, the power of Congress is limited only by those prohibitions of the
Constitution which go to the very root of its power to act at all, irrespective of time or place. In all other respects
it is plenary. (De Limavs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi, 190 U.
S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.)

This power has been exercised by Congress throughout the whole history of the United States, and legislation
founded on the theory was enacted long prior to the acquisition of the present Insular possessions. Section
1891 of the Revised Statutes of 1878 provides that "The Constitution and all laws of the United States which
are not locally inapplicable shall have the same force and effect within all the organized territories, and in every
Territory hereafter organized, as elsewhere within the United States." When Congress organized a civil
government for the Philippines, it expressly provided that this section of the Revised Statutes should not apply
to the Philippine Islands. (Sec. 1, Act of 1902.)

In providing for the government of the territory which was acquired by the United States as a result of the war
with Spain, the executive and legislative authorities have consistently proceeded in conformity with the
principles above state. The city of Manila was surrendered to the United States on August 13, 1898, and the
military commander was directed to hold the city, bay, and harbor, pending the conclusion of a peace which
should determine the control, disposition, and government of the Islands. The duty then devolved upon the
American authorities to preserve peace and protect person and property within the occupied territory. Provision
therefor was made by proper orders, and on August 26 General Merritt assumed the duties of military governor.
The treaty of peace was signed December 10, 1898. On the 22d of December, 1898, the President announced
that the destruction of the Spanish fleet and the surrender of the city had practically effected the conquest of
the Philippine Islands and the suspension of the Spanish sovereignty therein, and that by the treaty of peace
the future control, disposition, and government of the Islands had been ceded to the United States. During the
periods of strict military occupation, before the treaty of peace was ratified, and the interim thereafter, until
Congress acted (Santiago vs. Noueral, 214 U.S., 260), the territory was governed under the military authority
of the President as commander in chief. Long before Congress took any action, the President organized a civil
government which, however, had its legal justification, like the purely military government which it gradually
superseded, in the war power. The military power of the President embraced legislative, executive personally,
or through such military or civil agents as he chose to select. As stated by Secretary Root in his report for 1901
—

The military power in exercise in a territory under military occupation includes executive, legislative, and
judicial authority. It not infrequently happens that in a single order of a military commander can be
found the exercise of all three of these different powers — the exercise of the legislative powers by
provisions prescribing a rule of action; of judicial power by determination of right; and the executive
power by the enforcement of the rules prescribed and the rights determined.

President McKinley desired to transform military into civil government as rapidly as conditions would permit.
After full investigation, the organization of civil government was initiated by the appointment of a commission to
which civil authority was to be gradually transferred. On September 1, 1900, the authority to exercise, subject
to the approval of the President. "that part of the military power of the President in the Philippine Islands which
is legislative in its character" was transferred from the military government to the Commission, to be exercised
under such rules and regulations as should be prescribed by the Secretary of War, until such time as complete
civil government should be established, or congress otherwise provided. The legislative power thus conferred
upon the Commission was declared to include "the making of rules and orders having the effect of law for the
raising of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of public funds of
the Islands; the establishment of an educational system to secure an efficient civil service; the organization and
establishment of courts; the organization and establishment of municipal and departmental government, and all
other matters of a civil nature which the military governor is now competent to provide by rules or orders of a
legislative character." This grant of legislative power to the Commission was to be exercised in conformity with
certain declared general principles, and subject to certain specific restrictions for the protection of individual
rights. The Commission were to bear in mind that the government to be instituted was "not for our satisfaction
or for the expression of our theoretical views, but for the happiness, peace, and prosperity of the people of the
Philippine Island, and the measures adopted should be made to conforms to their customs, their habits, and
even their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of
just and effective government." The specific restrictions upon legislative power were found in the declarations
that "no person shall be deprived of life, liberty, or property without due process of law; that private property
shall not be taken for public use without just compensation; that in all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be
confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense; that excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice in jeopardy for the
same offense or be compelled in any criminal case to be a witness against himself; that the right to be secure
against unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary
servitude shall exist except as a punishment for crime; that no bill of attainder or ex post facto law shall be
passed; that no law shall be passed abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for a redress of grievances; that no law shall be
made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without discrimination or preference shall forever be
allowed."
To prevent any question as to the legality of these proceedings being raised, the Spooner amendment to the
Army Appropriation Bill passed March 2, 1901, provided that "all military, civil, and judicial powers necessary to
govern the Philippine Islands . . . shall until otherwise provided by Congress be vested in such person and
persons, and shall be exercised in such manner, as the President of the United States shall direct, for the
establishment of civil government, and for maintaining and protecting the inhabitants of said Islands in the free
enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901, the authority, which had been
exercised previously by the military governor, was transferred to that official. The government thus created by
virtue of the authority of the President as Commander in Chief of the Army and Navy continued to administer
the affairs of the Islands under the direction of the President until by the Act of July 1, 1902, Congress
assumed control of the situation by the enactment of a law which, in connection with the instructions of April 7,
1900, constitutes the organic law of the Philippine Islands.

The Act of July 1, 1902, made no substancial changes in the form of government which the President had
erected. Congress adopted the system which was in operation, and approved the action of the President in
organizing the government. Substantially all the limitations which had been imposed on the legislative power
by the President's instructions were included in the law, Congress thus extending to the Islands by legislative
act nor the Constitution, but all its provisions for the protection of the rights and privileges of individuals which
were appropriate under the conditions. The action of the President in creating the Commission with designated
powers of government, in creating the office of the Governor-General and Vice-Governor-General, and through
the Commission establishing certain executive departments, was expressly approved and ratified.
Subsequently the action of the President in imposing a tariff before and after the ratification of the treaty of
peace was also ratified and approved by Congress. (Act of March 8, 1902; Act of July 1, 1902;
U.S. vs. Heinszen, 206 U.S., 370; Lincolnvs. U.S., 197 U.S., 419.) Until otherwise provided by law the Islands
were to continue to be governed "as thereby and herein provided." In the future the enacting clause of all
statutes should read "By authority of the United States" instead of "By the authority of the President." In the
course of time the legislative authority of the Commission in all parts of the Islands not inhabited by Moros or
non-Christian tribes was to be transferred to a legislature consisting of two houses — the Philippine
Commission and the Philippine Assembly. The government of the Islands was thus assumed by Congress
under its power to govern newly acquired territory not incorporated into the United States.

This Government of the Philippine Islands is not a State or a Territory, although its form and organization
somewhat resembles that of both. It stands outside of the constitutional relation which unites the States and
Territories into the Union. The authority for its creation and maintenance is derived from the Constitution of the
United States, which, however, operates on the President and Congress, and not directly on the Philippine
Government. It is the creation of the United States, acting through the President and Congress, both deriving
power from the same source, but from different parts thereof. For its powers and the limitations thereon the
Government of the Philippines looked to the orders of the President before Congress acted and the Acts of
Congress after it assumed control. Its organic laws are derived from the formally and legally expressed will of
the President and Congress, instead of the popular sovereign constituency which lies upon any subject relating
to the Philippines is primarily in Congress, and when it exercise such power its act is from the viewpoint of the
Philippines the legal equivalent of an amendment of a constitution in the United States.

Within the limits of its authority the Government of the Philippines is a complete governmental organism with
executive, legislative, and judicial departments exercising the functions commonly assigned to such
departments. The separation of powers is as complete as in most governments. In neither Federal nor State
governments is this separation such as is implied in the abstract statement of the doctrine. For instance, in the
Federal Government the Senate exercises executive powers, and the President to some extent controls
legislation through the veto power. In a State the veto power enables him to exercise much control over
legislation. The Governor-General, the head of the executive department in the Philippine Government, is a
member of the Philippine Commission, but as executive he has no veto power. The President and Congress
framed the government on the model with which Americans are familiar, and which has proven best adapted
for the advancement of the public interests and the protection of individual rights and priviliges.

In instituting this form of government of intention must have been to adopt the general constitutional doctrined
which are inherent in the system. Hence, under it the Legislature must enact laws subject to the limitations of
the organic laws, as Congress must act under the national Constitution, and the States under the national and
state constitutions. The executive must execute such laws as are constitutionally enacted. The judiciary, as in
all governments operating under written constitutions, must determine the validity of legislative enactments, as
well as the legality of all private and official acts. In performing these functions it acts with the same
independence as the Federal and State judiciaries in the United States. Under no other constitutional theory
could there be that government of laws and not of men which is essential for the protection of rights under a
free and orderly government.

Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that the courts
must consider the question of the validity of an act of the Philippine Commission or the Philippine Legislature,
as a State court considers an act of the State legislature. The Federal Government exercises such powers only
as are expressly or impliedly granted to it by the Constitution of the United States, while the States exercise all
powers which have not been granted to the central government. The former operates under grants, the latter
subject to restrictions. The validity of an Act of Congress depends upon whether the Constitution of the United
States contains a grant of express or implied authority to enact it. An act of a State legislature is valid unless
the Federal or State constitution expressly or impliedly prohibits its enaction. An Act of the legislative authority
of the Philippines Government which has not been expressly disapproved by Congress is valid unless its
subject-matter has been covered by congressional legislation, or its enactment forbidden by some provision of
the organic laws.

The legislative power of the Government of the Philippines is granted in general terms subject to specific
limitations. The general grant is not alone of power to legislate on certain subjects, but to exercise the
legislative power subject to the restrictions stated. It is true that specific authority is conferred upon the
Philippine Government relative to certain subjects of legislation, and that Congress has itself legislated upon
certain other subjects. These, however, should be viewed simply as enactments on matters wherein Congress
was fully informed and ready to act, and not as implying any restriction upon the local legislative authority in
other matters. (See Opinion of Atty. Gen. of U. S., April 16, 1908.)

The fact that Congress reserved the power to annul specific acts of legislation by the Government of the
Philippine tends strongly to confirm the view that for purposes of construction the Government of the
Philippines should be regarded as one of general instead of enumerated legislative powers. The situation was
unusual. The new government was to operate far from the source of its authority. To relieve Congress from the
necessity of legislating with reference to details, it was thought better to grant general legislative power to the
new government, subject to broad and easily understood prohibitions, and reserve to Congress the power to
annul its acts if they met with disapproval. It was therefore provided "that all laws passed by the Government of
the Philippine Islands shall be reported to Congress, which hereby reserves the power and authority to annul
the same." (Act of Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the
Legislature of the Philippines until approved by Congress, or when approved, expressly or by acquiescence,
make them the laws of Congress. They are valid acts of the Government of the Philippine Islands until annulled.
(Miners Bank vs. Iowa, 12 How. (U. S.), 1.)

In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has been
expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the United States
operated only upon the States of the Union. It has no application to the Government of the Philippine Islands.
The power to regulate foreign commerce is vested in Congress, and by virtue of its power to govern the
territory belonging to the United States, it may regulate foreign commerce with such territory. It may do this
directly, or indirectly through a legislative body created by it, to which its power in this respect if delegate.
Congress has by direct legislation determined the duties which shall be paid upon goods imported into the
Philippines, and it has expressly authorized the Government of the Philippines to provide for the needs of
commerce by improving harbors and navigable waters. A few other specific provisions relating to foreign
commerce may be found in the Acts of Congress, but its general regulation is left to the Government of the
Philippines, subject to the reserved power of Congress to annul such legislation as does not meet with its
approval. The express limitations upon the power of the Commission and Legislature to legislate do not affect
the authority with respect to the regulation of commerce with foreign countries. Act No. 55 was enacted before
Congress took over the control of the Islands, and this act was amended by Act No. 275 after the Spooner
amendment of March 2, 1901, was passed. The military government, and the civil government instituted by the
President, had the power, whether it be called legislative or administrative, to regulate commerce between
foreign nations and the ports of the territory. (Crossvs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin,
21 Wall. (U.S.), 73, 87.) This Act has remained in force since its enactment without annulment or other action
by Congress, and must be presumed to have met with its approval. We are therefore satisfied that the
Commission had, and the Legislature now has, full constitutional power to enact laws for the regulation of
commerce between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as amended
by Act No. 275, is valid.

3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be left to the
judgment of the master of the ship. It is a question which must be determined by the court from the evidence.
On December 2, 1908, the defendant Bull brought into and disembarked in the port and city of Manila certain
cattle, which came from the port of Ampieng, Formosa, without providing suitable means for securing said
animals while in transit, so as to avoid cruelty and unnecessary suffering to said animals, contrary to the
provisions of section 1 of Act No. 55, as amended by section 1 of Act No. 275. The trial court found the
following facts, all of which are fully sustained by the evidence:

That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as the Standard,
for a period of six months or thereabouts prior to the 2d day of December, 1908, was engaged in the
transportation of cattle and carabaos from Chines and Japanese ports to and into the city of Manila,
Philippine Islands.

That on the 2d day of December, 1908, the defendant, as such master and captain as aforesaid,
brought into the city of Manila, aboard said ship, a large number of cattle, which ship was anchored,
under the directions of the said defendant, behind the breakwaters in front of the city of Manila, in
Manila Bay, and within the jurisdiction of this court; and that fifteen of said cattle then and there had
broken legs and three others of said cattle were dead, having broken legs; and also that said cattle
were transported and carried upon said ship as aforesaid by the defendant, upon the deck and in the
hold of said ship, without suitable precaution and care for the transportation of said animals, and to
avoid danger and risk to their lives and security; and further that said cattle were so transported abroad
said ship by the defendant and brought into the said bay, and into the city of Manila, without any
provisions being made whatever upon said decks of said ship and in the hold thereof to maintain said
cattle in a suitable condition and position for such transportation.

That a suitable and practicable manner in which to transport cattle abroad steamship coming into
Manila Bay and unloading in the city of Manila is by way of individual stalls for such cattle, providing
partitions between the cattle and supports at the front sides, and rear thereof, and cross-cleats upon
the floor on which they stand and are transported, of that in case of storms, which are common in this
community at sea, such cattle may be able to stand without slipping and pitching and falling, individually
or collectively, and to avoid the production of panics and hazard to the animals on account or cattle
were transported in this case. Captain Summerville of the steamship Taming, a very intelligent and
experienced seaman, has testified, as a witness in behalf of the Government, and stated positively that
since the introduction in the ships with which he is acquainted of the stall system for the transportation
of animals and cattle he has suffered no loss whatever during the last year. The defendant has testified,
as a witness in his own behalf, that according to his experience the system of carrying cattle loose upon
the decks and in the hold is preferable and more secure to the life and comfort of the animals, but this
theory of the case is not maintainable, either by the proofs or common reason. It can not be urged with
logic that, for instance, three hundred cattle supports for the feet and without stalls or any other
protection for them individually can safely and suitably carried in times of storm upon the decks and in
the holds of ships; such a theory is against the law of nature. One animal falling or pitching, if he is
untied or unprotected, might produce a serious panic and the wounding of half the animals upon the
ship if transported in the manner found in this case.

The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with subsidiary
imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is affirmed. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5887 December 16, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.

Thos. D. Aitken for appellant.

Attorney-General Villamor for appellee.

ARELLANO, C. J.:

The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he "carried,
kept, possessed and had in his possession and control, 96 kilogrammes of opium," and that "he had been
surprised in the act of selling 1,000 pesos worth prepared opium."

The defense presented a demurrer based on two grounds, the second of which was the more than one crime
was charged in the complaint. The demurrer was sustained, as the court found that the complaint contained
two charges, one, for the unlawful possession of opium, and the other, for the unlawful sale of opium, and,
consequence of that ruling, it ordered that the fiscal should separate one charge from the other and file a
complaint for each violation; this, the fiscal did, and this cause concerns only the unlawful possession of opium.
It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on the general docket of this
court.

The facts of the case are contained in the following finding of the trial court:

The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month (stated as
August 19, 1909), several persons, among them Messrs. Jacks and Milliron, chief of the department of
the port of Cebu and internal-revenue agent of Cebu, respectively, went abroad the steamship Erroll to
inspect and search its cargo, and found, first in a cabin near the saloon, one sack (Exhibit A) and
afterwards in the hold, another sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of
opium, and the other, Exhibit B, the larger sack, also contained several cans of the same substance.
The hold, in which the sack mentioned in Exhibit B was found, was under the defendant's control, who
moreover, freely and of his own will and accord admitted that this sack, as well as the other referred to
in Exhibit B and found in the cabin, belonged to him. The said defendant also stated, freely and
voluntarily, that he had bought these sacks of opium, in Hongkong with the intention of selling them as
contraband in Mexico or Vera Cruz, and that, as his hold had already been searched several times for
opium, he ordered two other Chinamen to keep the sack. Exhibit A.

It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly constitute
thecorpus delicti. Moreover, another lot of four cans of opium, marked, as Exhibit C, was the subject matter of
investigation at the trial, and with respect to which the chief of the department of the port of Cebu testified that
they were found in the part of the ship where the firemen habitually sleep, and that they were delivered to the
first officer of the ship to be returned to the said firemen after the vessel should have left the Philippines,
because the firemen and crew of foreign vessels, pursuant to the instructions he had from the Manila custom-
house, were permitted to retain certain amounts of opium, always provided it should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as evidence in this
cause. With regard to this the internal-revenue agent testified as follows:itc-alf

FISCAL. What is it?

WITNESS. It is a can opium which was bought from the defendant by a secret-service agent and taken
to the office of the governor to prove that the accused had opium in his possession to sell.

On motion by the defense, the court ruled that this answer might be stricken out "because it refers to a sale."
But, with respect to this answer, the chief of the department of customs had already given this testimony, to
wit:

FISCAL. Who asked you to search the vessel?

WITNESS. The internal-revenue agent came to my office and said that a party brought him a sample of
opium and that the same party knew that there was more opium on board the steamer, and the agent
asked that the vessel be searched.

The defense moved that this testimony be rejected, on the ground of its being hearsay evidence, and the court
only ordered that the part thereof "that there was more opium, on board the vessel" be stricken out.

The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B, and C,
contained opium and were found on board the steamship Erroll, a vessel of English nationality, and that it was
true that the defendant stated that these sacks of opium were his and that he had them in his possession.

According to the testimony of the internal-revenue agent, the defendant stated to him, in the presence of the
provincial fiscal, of a Chinese interpreter (who afterwards was not needed, because the defendant spoke
English), the warden of the jail, and four guards, that the opium seized in the vessel had been bought by him in
Hongkong, at three pesos for each round can and five pesos for each one of the others, for the purpose of
selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu, and
on the same day he sold opium; that he had tried to sell opium for P16 a can; that he had a contract to sell an
amount of the value of about P500; that the opium found in the room of the other two Chinamen prosecuted in
another cause, was his, and that he had left it in their stateroom to avoid its being found in his room, which had
already been searched many times; and that, according to the defendant, the contents of the large sack was
80 cans of opium, and of the small one, 49, and the total number, 129.

It was established that the steamship Erroll was of English nationality, that it came from Hongkong, and that it
was bound for Mexico, via the call ports of Manila and Cebu.

The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to try the
same and the facts concerned therein did not constitute a crime. The fiscal, at the conclusion of his argument,
asked that the maximum penalty of the law be imposed upon the defendant, in view of the considerable
amount of opium seized. The court ruled that it did not lack jurisdiction, inasmuch as the crime had been
committed within its district, on the wharf of Cebu.

The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with additional
subsidiary imprisonment in case of insolvency, though not to exceed one third of the principal penalty, and to
the payment of the costs. It further ordered the confiscation, in favor of the Insular Government, of the exhibits
presented in the case, and that, in the event of an appeal being taken or a bond given, or when the sentenced
should have been served, the defendant be not released from custody, but turned over to the customs
authorities for the purpose of the fulfillment of the existing laws on immigration.

From this judgment, the defendant appealed to this court.lawphi1.net

The appeal having been heard, together with the allegations made therein by the parties, it is found: That,
although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in
any of their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on
account of such vessel being considered as an extension of its own nationality, the same rule does not apply
when the article, whose use is prohibited within the Philippine Islands, in the present case a can of opium, is
landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, only
the court established in that said place itself had competent jurisdiction, in the absence of an agreement under
an international treaty.

It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the present case,
was considerable, it does not appear that, on such account, the two penalties fixed by the law on the subject,
should be imposed in the maximum degree.

Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively, we affirm
in all other respects the judgment appealed from, with the costs of this instance against the appellant. So
ordered.

Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-13005 October 10, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
AH SING, defendant-appellant.

Antonio Sanz for appellant.

Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant guilty of a
violation of section 4 of Act No. 2381 (the Opium Law), and sentencing him to two years imprisonment, to pay
a fine of P300 or to suffer subsidiary imprisonment in case of insolvency, and to pay the costs.

The following facts are fully proven: The defendant is a subject of China employed as a fireman on the
steamshipShun Chang. The Shun Chang is a foreign steamer which arrived at the port of Cebu on April 25,
1917, after a voyage direct from the port of Saigon. The defendant bought eight cans of opium in Saigon,
brought them on board the steamship Shun Chang, and had them in his possession during the trip from Saigon
to Cebu. When the steamer anchored in the port of Cebu on April 25, 1917, the authorities on making a search
found the eight cans of opium above mentioned hidden in the ashes below the boiler of the steamer's engine.
The defendant confessed that he was the owner of this opium, and that he had purchased it in Saigon. He did
not confess, however, as to his purpose in buying the opium. He did not say that it was his intention to import
the prohibited drug into the Philippine Islands. No other evidence direct or indirect, to show that the intention of
the accused was to import illegally this opium into the Philippine Islands, was introduced.

Has the crime of illegal importation of opium into the Philippine Islands been proven?

Two decisions of this Court are cited in the judgment of the trial court, but with the intimation that there exists
inconsistently between the doctrines laid down in the two cases. However, neither decision is directly a
precedent on the facts before us.

In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down by the Chief
Justice, it is found —

That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign
vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts
of this country, on account of such vessel being considered as an extension of its own nationality, the
same rule does no apply when the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a violation of the penal law in force at the
place of the commission of the crime, only the court established in the said place itself has competent
jurisdiction, in the absence of an agreement under an international treaty.1awphil.net

A marked difference between the facts in the Look Chaw case and the facts in the present instance is readily
observable. In the Look Chaw case, the charge case the illegal possession and sale of opium — in the present
case the charge as illegal importation of opium; in the Look Chaw case the foreign vessel was in transit — in
the present case the foreign vessel was not in transit; in the Look Chaw case the opium was landed from the
vessel upon Philippine soil — in the present case of United States vs. Jose ([1916], 34 Phil., 840), the main
point, and the one on which resolution turned, was that in a prosecution based on the illegal importation of
opium or other prohibited drug, the Government must prove, or offer evidence sufficient to raise a presumption,
that the vessel from which the drug is discharged came into Philippine waters from a foreign country with the
drug on board. In the Jose case, the defendants were acquitted because it was not proved that the opium was
imported from a foreign country; in the present case there is no question but what the opium came from Saigon
to Cebu. However, in the opinion in the Jose case, we find the following which may be obiter dicta, but which at
least is interesting as showing the view of the writer of the opinion:

The importation was complete, to say the least, when the ship carrying it anchored in Subic Bay. It was
not necessary that the opium discharged or that it be taken from the ship. It was sufficient that the
opium was brought into the waters of the Philippine Islands on a boat destined for a Philippine port and
which subsequently anchored in a port of the Philippine Islands with intent to discharge its cargo.

Resolving whatever doubt was exist as to the authority of the views just quoted, we return to an examination of
the applicable provisions of the law. It is to be noted that section 4 of Act No. 2381 begins, "Any person who
shall unlawfully import or bring any prohibited drug into the Philippine Islands." "Import" and "bring" are
synonymous terms. The Federal Courts of the United States have held that the mere act of going into a port,
without breaking bulk, is prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And
again, the importation is not the making entry of goods at the custom house, but merely the bringing them into
port; and the importation is complete before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas.,
1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium Law, we expressly hold that any
person unlawfully imports or brings any prohibited drug into the Philippine Islands, when the prohibited drug is
found under this person's control on a vessel which has come direct from a foreign country and is within the
jurisdictional limits of the Philippine Islands. In such case, a person is guilty of illegal importation of the drug
unless contrary circumstances exist or the defense proves otherwise. Applied to the facts herein, it would be
absurb to think that the accused was merely carrying opium back and forth between Saigon and Cebu for the
mere pleasure of so doing. It would likewise be impossible to conceive that the accused needed so large an
amount of opium for his personal use. No better explanation being possible, the logical deduction is that the
defendant intended this opium to be brought into the Philippine Islands. We accordingly find that there was
illegal importation of opium from a foreign country into the Philippine Islands. To anticipate any possible
misunderstanding, let it be said that these statements do not relate to foreign vessels in transit, a situation not
present.

The defendant and appellant, having been proved guilty beyond a reasonable doubt as charged and the
sentence of the trial court being within the limits provided by law, it results that the judgment must be affirmed
with the costs of this instance against the appellant. So ordered.

Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

Attorney-General Villa-Real for appellant.

Eduardo Gutierrez Repide for appellee.

ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila,
sustaining the demurrer presented by the defendant to the information that initiated this case and in which the
appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality
while said vessel was anchored in Manila Bay two and a half miles from the shores of the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case.

The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not
be erroneous according as said court has or has no jurisdiction over said offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved,
committed aboard merchant vessels anchored in our jurisdiction waters. 1awph!l.net

There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule,
according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of
the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and
security of the territory; and the English rule, based on the territorial principle and followed in the United States,
according to which, crimes perpetrated under such circumstances are in general triable in the courts of the country
within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at
present the theories and jurisprudence prevailing in the United States on this matter are authority in the Philippines
which is now a territory of the United States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall
said:

. . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and
dangerous to society, and would subject the laws to continual infraction, and the government to degradation,
if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the
jurisdiction of the country. . . .

In United States vs. Bull (15 Phil., 7), this court held:

. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or
within the territorial waters of any other country, but when she came within three miles of a line drawn from
the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set
of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit
Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty
through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common
Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or
those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which
disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper
authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions
a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the
particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if
the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to
prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign
vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the
Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply
when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil;
in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation
of the penal law in force at the place of the commission of the crime, no court other than that established in
the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part
thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in
question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy
says the following:

There shall be between the territories of the United States of America, and all the territories of His Britanic
Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall
have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in
the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to
remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and
warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and security for their commerce, but subject always to
the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable
by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines
against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being
used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding.
Hence such a mere possession is not considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of
the public order here established, because it causes such drug to produce its pernicious effects within our territory. It
seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute.
Moreover, as the Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in
open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public
order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port
of Manila and allow or solicit Chinese residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in
accordance with law, without special findings as to costs. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 84612 March 11, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DIOSDADO AVILA, AGAPITO AGRABIO and AURELIO SILVOZA, accused, DIOSDADO AVILA and
AGAPITO AGRABIO, accused-appellants.

PADILLA, J.:

This is an appeal from the decision * of the Regional Trial Court, Tandag, Surigao del Sur, Branch 27, dated 12
July 1988, rendered in Criminal Case No. 1326, finding the accused Diosdado Avila and Agapito Agrabio,
herein appellants, guilty of the crime of murder, but acquitting accused Aurelio Silvoza. However, after the trial
court had forwarded to this Court the records of the case, by reason of the appeal interposed by the appellants,
said court, on 1 August 1988, amended its decision of 12 July 1988 and submitted to this Court said amended
decision which found accused Avila and Agrabio guilty of rebellion, not murder. The people interposed
objection to the rendition of the amended decision at a time when the trial court had lost jurisdiction over the
case.

The records show on 23 October 1985, the victim Gregorio P. Murillo, then governor of the province of Surigao
del Sur, was shot dead allegedly by Diosdado Avila, Agapito Agrabio and Aurelio Silvoza. An information for
murder was filed against the above-named accused, which reads as follows:

That on or about 5:30 o'clock in the morning on October 23, 1985 at the National Highway,
municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, Diosdado Avila, Agapito Agrabio and Aurelio
Silvoza, conspiring, confederating and mutually helping one another, without provocation, with
treachery, evident premeditation and with deliberate intent to kill, armed with an unlicensed .45
Caliber Pistol and with the use thereof, did, then and there, wilfully, unlawfully and feloniously
shoot Governor Gregorio P. Murillo, Provincial Governor of Surigao del Sur, thereby hitting and
inflicting upon the latter a gunshot wound on his head, . . .

xxx xxx xxx

which wound or injuries caused the instantaneous death of Governor Gregorio P. Murillo, . . . . 1

Upon arraignment, the three (3) accused pleaded not guilty to the crime charged. The only issue which the trial
court found necessary to resolve was whether or into the shooting and resultant killing of the victim by the
accused, were done in furtherance of rebellion or of their intention to overthrow or help overthrow the duly
constituted government. 2

On 12 July 1988, after hearing the evidence of the prosecution and the defense, the trial court rendered its
decision finding, as already adverted to the two (2) accused, Diosdado Avila and Agapito Agrabio, guilty of the
crime charged (murder) and sentencing them to life imprisonment, while the third accused, Aurelio Silvoza,
was absolved from any criminal liability. The dispositive portion of the decision reads:
 WHEREFORE, finding accused Diosdado Avila and Agapito Agrabio guilty beyond reasonable
doubt of the crime of murder as principals, the court sentences both of them to life imprisonment,
to be served by them at the National Penitentiary, Muntinlupa, Metro Manila, with costs against
them.

They are hereby ordered to pay the heirs of the late Governor Gregorio P. Murillo the sum of
P6,000.00 for the marble tomb of the deceased; P10,000.00 for the expenses in the solution of
this crime; P30,000.00 for life indemnity; P50,000.00 for actual damages; P25,000.00 for moral
damages and P10,000.00 for exemplary damages, without subsidiary imprisonment in case of
insolvency.

Accused Aurelio Silvoza is hereby absolved from any criminal liability. 3

Accused Avila and Agapito timely filed their appeal from said decision. On 3 August 1988, the trial court
forwarded (posted) to this Court the records of the case including its decision of 12 July 1988 which were
received by the Supreme Court on 26 August 1988. However, the records also show that the trial court issued
another decision which is dated 1 August 1988 but forwarded (posted) to the Supreme Court on 15 August
1988 and received by the Supreme Court on 15 September 1988. Its second decision amended its earlier
decision of 12 July 1988, ruling this time that Avila and Agrabio are guilty of rebellion, not murder. The
dispositive portion of the amended decision reads:

WHEREFORE, finding the accused Diosdado Avila and Agapito Agrabio guilty beyond
reasonable doubt of rebellion, the court sentences them to suffer the penalty of reclusion
temporal in its medium period and a fine of not to exceed P20,000.00 or an imprisonment of
twelve (12) years and one (1) day to twenty (20) years and an additional imprisonment in case
of insolvency to be served by them in the National Penitentiary, Muntinlupa, Metro Manila.

xxx xxx xxx

Accused Aurelio Silvoza is hereby absolved from any criminal liability. 4

It will be observed that the "amended decision", although dated 1 August 1988, was promulgated only after the
appellants had timely appealed from the earlier decision of 12 July 1988 and after the trial court had forwarded
to the Supreme Court the records of the case.

Section 7, Rule 120 of the Rules of Court provides that a "judgment of conviction may, upon motion of the
accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has
been perfected." It is thus clear that at the trial court rendered the "amended decision," said court had already
lost its jurisdiction over the case, the appeal having been earlier perfected. Hence, the "amended decision" has
no legal force and effect.

There is no question then that it is the decision of 12 July 1988 convicting the appellants of the crime of murder
and sentencing them to the penalty of life imprisonment, which is the subject of the present review.

The main if not the sole question in the appeal at bar is whether the trial court correctly convicted appellants of
the crime of murder.

Upon careful consideration of the facts and circumstances surrounding the case, as well as the evidence
presented by the prosecution and the defense, the Court, in the exercise of its power to review, revise, reverse,
modify or affirm 5 the appealed decision dated 12 July 1988, holds that appellants Avila and Agrabio are guilty
of the crime of rebellion, not murder. Hence, we find merit in their appeal.

The undisputed facts 6 of the case show that:

 At about 5:30 in the morning of 23 October 1985 along the national highway of Tandag, Surigao
del Sur, while the victim was inside his car seated beside the driver, whereas Mrs. Murillo, (wife
of the Governor) was seated behind, appellant Avila shot Governor Murillo at the head, using
a .45 caliber pistol, resulting to the Governor's death. His only companion then was appellant
Agrabio. Aurelio Silvoza (the other co-accused) was not present at the time the crime was
committed as he was at the hinterland resting because he was then sick. 7 After the shooting,
the two appellants — Avila and Agrabio ran away. On 17 February 1987 Agrabio was
apprehended whereas Avila and Silvoza were captured on 18 February 1987 by the members
of the Philippine Constabulary.

During the trial of the case, it was the contention of the defense that appellants committed rebellion, not murder,
the shooting and killing of the late Governor Murillo being a means to or in furtherance of rebellion or in
pursuance of the objectives of the rebels. 8

However, notwithstanding the aforesaid claim of the defense, the trial court in its decision, dated 12 July 1988,
found appellants Avila and Agrabio guilty of the crime of murder (accused Silvoza was acquitted). It ruled that
the crime committed could not be rebellion because there was no evidence presented showing that at the time
Governor Murillo was fatally shot, an uprising or rebellion was on-going where the rebels and the armed forces
of the government were actually fighting or locked in combat.

But the evidence show that appellants Avila and Agrabio were on a mission to kill and, in fact, they killed
Governor Murillo on that fateful day of 23 October 1985. The evidence also disclose that at the time they killed
the Governor, they were members of the liquidating squad of the New People's Army (NPA), and that they
killed the Governor upon the orders of their senior officer in the NPA, one Commander Celo. According to them,
they were ordered to "liquidate" the Governor because of the latter's "corruption" in not giving on time the
salaries of the employees in the provincial government, and that, instead, he gave the salaries first to the
military whom he maintained as his personal bodyguards.

The killing of Governor Murillo by the appellants Avila (alias Commander Efren); and Agrabio
(alias Commander Raymund) who were at
the time admittedly and undisputably members of the liquidating squad of the NPA, 9 upon the orders of NPA
Commander Celo, appears therefore to be politically motivated and tainted. Hence, this Court is of the view
that the appellants committed the crime of simple rebellion, not murder, punishable under Article 134 and 135
of the Revised Penal code ("RPC" for brevity) consistent with the ruling in People vs. Manglallan, 10 which held
that:

The appellant admits that he was a member of the NPA then operating in the Cagayan Area
with Ka Daniel as their leader. He asserts that the NPA is the military arm of the Communist
Party of the Philippines. There is no question likewise that the killing of Apolonio Ragual by the
appellant and his companions who were also members of the NPA upon the orders of Ka Daniel
was politically motivated. They suspected Ragual as an informer of the PC. In fact, after he was
killed, they left a letter and a drawing on the body of Ragual as a warning to others not follow his
example. . . . The Court, therefore, sustains the contention of the appellant that the crime he
committed is not murder but the crime of rebellion punishable under Articles 134 and 135 of the
Revised Penal Code.

As regards the crime of rebellion and the penalty imposable therefor, Articles 134 and 135 of the Revised
Penal Code have been amended several times by a number of presidential decrees and Executive Order No.
187 11 and Republic Act No. 6968. 12

At the time the crime was committed in the case at bar (i.e., 23 October 1985), the presidential decree in force
and effect was P.D. 1834 which amended Article 135 of the RPC, by imposing a penalty of reclusion
perpetua to death for those found guilty of rebellion. Felonies being generally punishable under the laws in
force at the time of their commission, 13 the impossible penalty, therefore, in the present case is
that provided by P.D. 1834. Said Article 135, as amended by P.D. 1834, refers to two (2) groups of persons
who may commit rebellion — the first group (referred to in paragraph one of Article 135) are those who
promote, maintain, or head a rebellion, or who, while holding any public office or employment, take part therein,
engaging in war against the forces of the government, destroying property or committing serious violence,
exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated;
the second group (referred to in paragraph two thereof) are those who merely participate in or execute the
commands of others in a rebellion.

In the instant appeal, while we find the appellants guilty of rebellion, we also find that their case falls under the
"second group" referred to in paragraph two (2) of Article 135, the evidence having shown that they belonged
to the liquidating squad of the NPA, tasked to operate in Tandag, and that they killed the victim, Governor
Murillo, in compliance with the orders of their senior officer, one Commander Celo of the NPA.

However, as far as the penalty imposed is concerned, it would seem immaterial whether the offender falls
under the first or second group, for under Article 135, RPC as amended by P.D. 1834, a uniform penalty
of reclusion perpetua to death is imposed for the "first group" or "second group" of rebellion.

But we take note that pending the present appeal, R.A. 6968 was enacted and is now in full force, which
provides for the penalty of reclusion perpetua for offenders belonging to the "first group", and reclusion
temporal only for those falling under the "second group" of rebellion.

Pursuant to Article 22 of the Revised Penal Code 14 penal laws are given retroactive effect insofar as they are
favorable to the offender. Considering that a retroactive effect of RA 6968 to the present appeal would be more
favorable to the appellants as said Act imposes a penalty of reclusion temporal, not reclusion perpetua as in
P.D. 1834, for offenders belonging to the "second group" of rebels, the Court shall therefore impose the
penalty provided for in Article 135 of the RPC, as amended by RA 6968, which is reclusion temporal. There
being neither an aggravating nor mitigating circumstance attending the commission of the offense, the proper
penalty is reclusion temporal in its medium period, applying rule No. 1 set forth in Article 64 of the RPC. 15 The
range of the penalty of reclusion temporal in its medium period is from fourteen (14) years, eight (8) months
and one (1) day to seventeen (17) years and four (4) months. 16

As to the award of damages adjudged by the trial court, this Court grants to the heirs of the late Governor an
indemnity in the amount of P50,000.00, but the other items for damages granted in the appealed decision are
set aside for they are not proper in rebellion cases.

Finally, the Court notes with deep concern the trial judge's attempt to amend his earlier decision of 12 July
1988, after the lapse of 20 days (the amended decision being dated 1 August 1988), totally disregarding the
basic doctrine that courts lose jurisdiction over cases after an appeal shall have been perfected therein. This
doctrine is too elementary as to have been ignored by the trial judge. Whatever may be the reasons behind the
intriguing change in the respondent judge in rendering his amended decision, the Court strictly admonishes
him to be more cautious, circumspect and be decisive in the exercise of his judicial functions.

WHEREFORE, the appealed decision of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27 dated
12 July 1988 rendered in Criminal Case No. 1326 is hereby MODIFIED, by convicting the accused-appellants,
Diosdado Avila and Agapito Agrabio of the crime of rebellion punishable under Article 135, paragraph No. 2 of
the Revised Penal Code as amended by Republic Act No. 6968, ( and not murder), and hereby sentencing
them to suffer imprisonment of fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years
and four (4) months of reclusion temporal, and to indemnify, solidarily, the heirs of the deceased former
Governor Gregorio P. Murillo in the amount of P50,000.00.

SO ORDERED.

Melencio-Herrera, Paras, Regalado and Nocon, JJ., concur.

Footnotes

** Penned by Judge Martin V. Vera Cruz.

1 Rollo, p. 9.

2 Rollo, p. 11.

3 Rollo, pp. 14-15.

4 Rollo, p. 19.

5 Sec. 5, par. 2(d), Art. VIII of the 1987 Constitution.

6 Original Records, pp. 20 and 225.

7 Rollo, p. 14.

8 Ibid., p. 12.

9 Avila, Agrabio and Silvoza were members of the sparrow unit (or liquidating squad) of the NPA operating in
Tandag only. Commander Efren (Avila) was then the Team Leader of the group/unit, Commander Raymund
Agrabio was Assistant Team Leader, while Commander Boyet (Silvoza) was a member. (Original Records, pp.
225 and 252)

10 G.R. No. L-38538, 160 SCRA 116, April 15, 1988.

11 Executive Order No. 187 (5 June 1987) repeals Presidential Decree Nos. 38, 942, 970, 1735,
*1834*, 11a 1974 and 1996, and articles 142-A and 142-B of the Revised Penal Code. The said Order restores
to full force and effect Articles 135, 136, 137, 138, 140, 141, 142, 143, 144, 146, 147, 177, 178 and 179 of the
Revised Penal Code as they existed before the amendatory presidential decrees.

11a P.D. 1834 (dated 16 January 1981) had earlier amended Article 135 of the Revised Penal Code, when it
imposed the penalty of reclusion perpetua to death for those found guilty of rebellion. The decree reads:

ART. 135. Penalty for rebellion or insurrection. — Any person who promotes, maintains, or heads a rebellion or
insurrection, or who, while holding any public office or employment takes part therein, engaging in war against
the forces of the Government, destroying property or committing serious violence, exacting contributions or
diverting public funds from the lawful purpose for which they have been appropriated, shall suffer the penalty
of reclusion perpetua to death.

Any person merely participating or executing the commands of others in a rebellion shall also suffer the penalty
of reclusion perpetua to death."

12 REPUBLIC ACT NO. 6968: AN ACT PUNISHING THE CRIME OF COUP D'ETAT BY AMENDING
ARTICLES 134, 135 AND 136 OF CHAPTER ONE, TITLE THREE OF ACT NUMBERED THIRTY-EIGHT
HUNDRED AND FIFTEEN, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AND FOR OTHER
PURPOSES

xxx xxx xxx

SECTION 1. The heading of Chapter One, Title Three of the Revised Penal Code is hereby amended to read
as follows: "REBELLION, COUP D'ETAT, SEDITION AND DISLOYALTY".
SECTION 2. Article 134 of the Revised Penal Code is hereby amended to read as follows:

Article 134. Rebellion or insurrection. How committed. —

The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government
for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of
the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

xxx xxx xxx

SECTION 4. Article 135 of the Revised Penal Code is hereby amended to read as follows:

Article 135. Penalty for rebellion, insurrection or coup d'etat. — Any person who promotes, maintains, or heads
a rebellion or insurrection shall suffer the penalty of reclusion perpetua.

Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer
the penalty of reclusion temporal.

xxx xxx xxx

When the rebellion, insurrection, or coup d'etat shall be under the command of unknown leaders, any person
who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or
performed similar acts, on behalf of the rebels shall be deemed a leader of such rebellion, insurrection, or coup
d'etat.

13 Pursuant to Article 366 of the Revised Penal Code which provides that:

Application of laws enacted prior to this Code. — Without prejudice to the provisions contained in Article 22 of
this Code, felonies and misdemeanors, committed prior to the date of effectiveness of this Code shall be
punished in accordance with the Code or Acts in force at the time of their commission.

14 Article 22 reads:

Retroactive effect of penal laws. — Penal laws shall have a retroactive effect insofar as they favor the persons
guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code,
although at the time of the publication of such laws a final sentence has been pronounced and the convict is
serving the same.

15 Article 64 of RPC reads:

Rates for the application of penalties which contain three periods. — In cases in which the penalties prescribed
by law contain three periods, whether if 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, the court shall
observe for the application of the penalty the following rules, according to whether there are or are not
mitigating or aggravating circumstances:

1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed
by law in its medium period.

xxx xxx xxx

16 Article 76 of the RPC speaks of the legal period of duration of divisible penalties which shall be considered
as divided into three parts, forming three periods, the minimum, the medium, and the maximum, and provides
the table of the duration of the divisible penalties and the time included in each of their periods.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 17958 February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd
and Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard flourished, seem
far away in the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth
century piracy in the south seas, but stripped of all touches of chivalry or of generosity, so as to present a
horrible case of rapine and near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In
one of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children,
likewise subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the
second boat arrived between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was
surrounded by six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on
the Dutch boat, too for themselves all of the cargo, attacked some of the men, and brutally violated two of the
women by methods too horrible to the described. All of the persons on the Dutch boat, with the exception of
the two young women, were again placed on it and holes were made in it, the idea that it would submerge,
although as a matter of fact, these people, after eleven days of hardship and privation, were succored violating
them, the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who
also raped one of the women, and Saraw. At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they
were arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was
interposed by counsel de officio for the Moros, based on the grounds that the offense charged was not within
the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did
not constitute a public offense, under the laws in force in the Philippine Islands. After the demurrer was
overruled by the trial judge, trial was had, and a judgment was rendered finding the two defendants guilty and
sentencing each of them to life imprisonment (cadena perpetua), to return together with Kinawalang and
Maulanis, defendants in another case, to the offended parties, the thirty-nine sacks of copras which had been
robbed, or to indemnify them in the amount of 924 rupees, and to pay a one-half part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of
elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or
forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and
intention of universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again done in this
court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani
generis. Piracy is a crime not against any particular state but against all mankind. It may be punished in the
competent tribunal of any country where the offender may be found or into which he may be carried. The
jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished by
all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for
those limits, though neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

The most serious question which is squarely presented to this court for decision for the first time is whether or
not the provisions of the Penal Code dealing with the crime of piracy are still in force. Article 153 to 156 of the
Penal Code reads as follows:

ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at
war with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be
punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article
shall suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in
the second paragraph of the same article, from cadena temporal to cadena perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries
specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs
one and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II,
Title IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code, when Spain is
mentioned it shall be understood as including any part of the national territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the
Constitution of the Monarchy, has the status of a Spaniard shall be considered as such.

The general rules of public law recognized and acted on by the United States relating to the effect of a transfer
of territory from another State to the United States are well-known. The political law of the former sovereignty is
necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United
States, or the characteristics and institutions of the government, remains in force. As a corollary to the main
rules, laws subsisting at the time of transfer, designed to secure good order and peace in the community,
which are strictly of a municipal character, continue until by direct action of the new government they are
altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)

These principles of the public law were given specific application to the Philippines by the Instructions of
President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of
Occupation in the Philippines, when he said:

Though the powers of the military occupant are absolute and supreme, and immediately operate upon
the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect
private rights of person and property, and provide for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the new order of things, until they are suspended
or superseded by the occupying belligerent; and practice they are not usually abrogated, but are
 allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they were
before the occupations. This enlightened practice is so far as possible, to be adhered to on the present
occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt
Proclamation of August 14, 1898.)

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include
the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of the Spanish
Monarchy, would also make the provisions of the Code applicable not only to Spaniards but to Filipinos.

The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he
has never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions
elsewhere and to the concepts of the public law. This must necessarily be so, considering that the Penal Code
finds its inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion.

The Constitution of the United States declares that the Congress shall have the power to define and punish
piracies and felonies committed on the high seas, and offenses against the law of nations. (U.S. Const. Art. I,
sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary ancillary legislation, provided that
whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards
brought into or found in the United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty
formerly death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the members of Congress
were content to let a definition of piracy rest on its universal conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not
inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles
of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is
mentioned, it should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the
word should be substituted by the expression "citizens of the United States and citizens of the Philippine
Islands." somewhat similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil.,
533) to give to the word "authority" as found in the Penal Code a limited meaning, which would no longer
comprehend all religious, military, and civil officers, but only public officers in the Government of the Philippine
Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the Philippine
Islands, or the subjects of another nation not at war with the United States, shall be punished with a
penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with the United
States, it shall be punished with the penalty of presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154, to be
still in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are
present at least two of the circumstances named in the last cited article as authorizing either cadena
perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the
abandonment of persons without apparent means of saving themselves. It is, therefore, only necessary for us
to determine as to whether the penalty of cadena perpetua or death should be imposed. In this connection, the
trial court, finding present the one aggravating circumstance of nocturnity, and compensating the same by the
one mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal Code,
sentenced the accused to life imprisonment. At least three aggravating circumstances, that the wrong done in
the commission of the crime was deliberately augmented by causing other wrongs not necessary for its
commission, that advantage was taken of superior strength, and that means were employed which added
ignominy to the natural effects of the act, must also be taken into consideration in fixing the penalty.
Considering, therefore, the number and importance of the qualifying and aggravating circumstances here
present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible
nature of the crime committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty
upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not unanimous with
regard to the court, Mr. Justice Romualdez, registers his nonconformity. In accordance with provisions of Act
No. 2726, it results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is
affirmed, and is reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy
and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by the judge of first
instance of the Twenty-sixth Judicial District. The two appellants together with Kinawalang and Maulanis,
defendants in another case, shall indemnify jointly and severally the offended parties in the equivalent of 924
rupees, and shall pay a one-half part of the costs of both instances. So ordered.

Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

 
[1]
Rollo, p. 1.
[2]
Decision penned by Judge Renato C. Dacudao, RTC-Br.14, Cebu, 26 May 1994.
[3]
To lie down.
[4]
A 3-bladed knife.
[5]
Rollo, p. 14.
[6]
TSN, 13 January 1994, pp. 5-6.

 
 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.
Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.
 

 
 Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

TEOFILO EVANGELISTA, G.R. No. 163267

Petitioner,

Present:

CARPIO, J., Chairperson,

- versus- BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

THE PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. May 5, 2010
x-------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to be in actual physical
possession thereof. The law does not punish physical possession alone but possession in general, which includes constructive
possession or the subjection of the thing to the owners control.[1]

This Petition for Review on Certiorari[2] assails the October 15, 2003 Decision[3] of the Court of Appeals (CA) in CA-G.R.
CR No. 21805 which affirmed the January 23, 1998 Decision[4] of the Regional Trial Court (RTC) of Pasay City, Branch 109
convicting petitioner Teofilo Evangelista for violation of Section 1, Presidential Decree (PD) No. 1866,[5] as amended, as well as the
April 16, 2004 Resolution which denied petitioners Motion for Reconsideration.

Factual Antecedents

In an Information[6] dated January 31, 1996, petitioner was charged with violation of Section 1 of PD 1866 allegedly committed as
follows:

That on or about the 30th day of January 1996, at the Ninoy Aquino International Airport, Pasay City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, wilfully,
unlawfully and feloniously have in his possession, custody and control the following items:

1. One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1) magazine;

2. One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2) magazines;
 3. Nineteen (19) 9mm bullets.

without the corresponding permit or license from competent authority.

CONTRARY TO LAW.

After posting his bail, petitioner filed on February 14, 1996 an Urgent Motion for (a) Suspension of Proceedings and (b) the Holding
of A Preliminary Investigation.[7] The RTC granted the motion and, accordingly, the State Prosecutor conducted the preliminary
investigation.

In a Resolution[8] dated March 6, 1996, the State Prosecutor found no probable cause to indict petitioner and thus recommended the
reversal of the resolution finding probable cause and the dismissal of the complaint. Thereafter, a Motion to Withdraw
Information[9] was filed but it was denied by the trial court in an Order[10] dated March 26, 1996, viz:

Acting on the Motion to Withdraw Information filed by State Prosecutor Aida Macapagal on the ground that [there
exists] no probable cause to indict the accused, the Information having been already filed in Court, the matter should
be left to the discretion of the Court to assess the evidence, hence, for lack of merit, the same is hereby denied. Let
the arraignment of the accused proceed.

When arraigned on March 26, 1996, petitioner pleaded not guilty to the charge. Thereafter, trial ensued.

Version of the Prosecution

In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a Customs Police assigned at the Ninoy Aquino International
Airport (NAIA) District Command, was informed by his superior that a certain passenger of Philippine Airlines (PAL) Flight No. 657
would be arriving from Dubai bringing with him firearms and ammunitions. Shortly after lunch, Acierto, together with Agents
Cuymo and Fuentabella, proceeded to the tube area where they were met by a crewmember who introduced to them herein petitioner.
Acierto asked petitioner if he brought firearms with him and the latter answered in the affirmative adding that the same were bought
in Angola. Thereupon, Acierto was summoned to the cockpit by the pilot, Capt. Edwin Nadurata (Capt. Nadurata), where the firearms
and ammunitions were turned over to him. Petitioner was then escorted to the arrival area to get his luggage and thereafter proceeded
to the examination room where the luggage was examined and petitioner was investigated. In open court, Acierto identified the
firearms and ammunitions.

During the investigation, petitioner admitted before Special Agent Apolonio Bustos (Bustos) that he bought the subject items
in Angola but the same were confiscated by the Dubai authorities, which turned over the same to a PAL personnel in Dubai. Upon
inquiry, the Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered with said office[11] nor
licensed holder of aforesaid firearms and ammunitions. Bustos likewise verified from the Bureau of Customs, but his effort yielded no
record to show that the firearms were legally purchased. Among the documents Bustos had gathered during his investigation were the
Arrival Endorsement Form[12] and Customs Declaration Form.[13] A referral letter[14] was prepared endorsing the matter to the
Department of Justice. Bustos admitted that petitioner was not assisted by counsel when the latter admitted that he bought the firearms
inAngola.
SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine National Police (PNP) and representative of the FEO, upon
verification, found that petitioner is not a licensed/registered firearm holder. His office issued a certification[15] to that effect which he
identified in court as Exhibit A.

After the prosecution rested its case, petitioner, with leave of court, filed his Demurrer to Evidence,[16] the resolution of which was
deferred pending submission of petitioners evidence.[17]

Version of the Defense

The defense presented Capt. Nadurata whose brief but candid and straightforward narration of the event was synthesized by the CA as
follows:

x x x On January 30, 1996, he was approached by the PAL Station Manager in Dubai, who informed him that a
Filipino contract worker from Angola who is listed as a passenger of PAL flight from Dubai to Manila, was being
detained as he was found in possession of firearms; that if said passenger will not be able to board the airplane, he
would be imprisoned in Dubai; and that the Arabs will only release the passenger if the Captain of PAL would
accept custody of the passenger [herein petitioner] and the firearms. Capt. Nadurata agreed to take custody of the
firearms and the passenger, herein appellant, so that the latter could leave Dubai. The firearms were deposited by the
Arabs in the cockpit of the airplane and allowed the appellant to board the airplane. Upon arrival in Manila, Capt.
Nadurata surrendered the firearms to the airport authorities.

Meanwhile, in view of the unavailability of the defenses intended witness, Nilo Umayaw (Umayaw), the PAL Station Manager
in Dubai, the prosecution and the defense agreed and stipulated on the following points:

1. That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police that firearms and ammunitions
were found in the luggage of a Filipino passenger coming from Angola going to the Philippines;

2. That he was the one who turned over the subject firearms to Captain Edwin Nadurata, the Pilot in
command of PAL Flight 657;

3. That the subject firearms [were] turned over at Dubai;

4. That the said firearms and ammunitions were confiscated from the accused Teofilo Evangelista and the
same [were] given to the PAL Station Manager who in turn submitted [them] to the PAL Pilot, Capt. Edwin
Nadurata who has already testified;

5. That [these are] the same firearms involved in this case.[18]

Ruling of the Regional Trial Court

On February 4, 1997, the RTC rendered its Decision, the dispositive portion of which reads:

In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond
reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions:
(One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19)
9mm bullets) and hereby sentences him to imprisonment of Seventeen (17) Years and Four (4) Months to Twenty
(20) Years.
 The above-mentioned firearms are hereby ordered forfeited in favor of the government and is ordered
transmitted to the National Bureau of Investigation, Manila for proper disposition.

SO ORDERED.[19]

On April 4, 1997, petitioner filed a Motion for New Trial[20] which the RTC granted.[21] Forthwith, petitioner took the witness
stand narrating his own version of the incident as follows:

On January 28, 1996, he was at Dubai International Airport waiting for his flight to the Philippines. He came
from Luwanda, Angola where he was employed as a seaman at Oil International Limited. While at the airport in Dubai, Arab
policemen suddenly accosted him and brought him to their headquarters where he saw guns on top of a table. The Arabs maltreated
him and forced him to admit ownership of the guns. At this point, PAL Station Manager Umayaw came and talked to the policemen
in Arabian dialect. Umayaw told him that he will only be released if he admits ownership of the guns. When he denied ownership of
the same, Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him to the Philippines. He
declined and insisted that the guns are not his. Upon the request of Umayaw, petitioner was brought to the Duty Free area for his flight
going to the Philippines. When he was inside the plane, he saw the Arab policemen handing the guns to the pilot. Upon arrival at the
NAIA, he was arrested by the Customs police and brought to the arrival area where his passport was stamped and he was made to sign
a Customs Declaration Form without reading its contents. Thereafter, he was brought to a room at the ground floor of the NAIA
where he was investigated. During the investigation, he was not represented by counsel and was forced to accept ownership of the
guns. He denied ownership of the guns and the fact that he admitted having bought the same in Angola.

Ruling of the Regional Trial Court

After new trial, the RTC still found petitioner liable for the offense charged but modified the penalty of imprisonment. The dispositive
portion of the Decision dated January 23, 1998 reads:

In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt
for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: One (1) Unit 9mm
Jerico Pistol, Israel with SN F-36283 with one (1) magazine; One (1) Unit Mini-Uzi 9mm Israel submachine gun
with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets and hereby sentences him to imprisonment
of Six (6) Years and One (1) Day to Eight (8) Years and a fine of P30,000.00.

The above-mentioned firearms are hereby ordered forfeited in favor of the government and [are] ordered transmitted
to the National Bureau of Investigation, Manila for proper disposition.

SO ORDERED.[22]

Ruling of the Court of Appeals

On appeal, the CA affirmed the findings of the trial court in its Decision dated October 15, 2003. It ruled that the stipulations
during the trial are binding on petitioner. As regards possession of subject firearms, the appellate court ruled that Capt. Naduratas
custody during the flight from Dubai to Manila was for and on behalf of petitioner. Thus, there was constructive possession.
 Petitioner moved for reconsideration[23] but it was denied by the appellate court in its April 16, 2004 Resolution.
Hence, this petition.

Issues

Petitioner assigns the following errors:

a. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of Presidential Decree No. 1866,
Illegal Possession of Firearms.

b. The Court of Appeals gravely erred in not holding that Evangelista was never in possession of any firearm or
ammunition within Philippine jurisdiction and he therefore could not have committed the crime charged
against him.

c. The Court of Appeals gravely erred in holding that Evangelista committed a continuing crime.

d. The Court of Appeals gravely erred in disregarding the results of the preliminary investigation.[24]

We find the appeal devoid of merit.

At the outset, we emphasize that under Rule 45 of the Rules of Court, a petition for review on certiorari shall only raise
questions of law considering that the findings of fact of the CA are, as a general rule, conclusive upon and binding on the Supreme
Court.[25] In this recourse, petitioner indulges us to calibrate once again the evidence adduced by the parties and to re-evaluate the
credibility of their witnesses. On this ground alone, the instant petition deserves to be denied outright. However, as the liberty of
petitioner is at stake and following the principle that an appeal in a criminal case throws the whole case wide open for review, we are
inclined to delve into the merits of the present petition.

In his bid for acquittal, petitioner argues that he could not have committed the crime imputed against him for he was never in custody
and possession of any firearm or ammunition when he arrived in the Philippines. Thus, the conclusion of the appellate court that he
was in constructive possession of the subject firearms and ammunitions is erroneous.

We are not persuaded. As correctly found by the CA:

Appellants argument that he was never found in possession of the subject firearms and ammunitions within
Philippine jurisdiction is specious. It is worthy to note that at the hearing of the case before the court a
quo on October 8, 1996, the defense counsel stipulated that the subject firearms and ammunitions were confiscated
from appellant and the same were given to PAL Station Manager Nilo Umayaw who, in turn, turned over the same
to Capt. Edwin Nadurata. Such stipulation of fact is binding on appellant, for the acts of a lawyer in the defense of a
case are the acts of his client. Granting that Nilo Umayaw was merely told by the Dubai authorities that the firearms
and ammunitions were found in the luggage of appellant and that Umayaw had no personal knowledge thereof,
however, appellants signature on the Customs Declaration Form, which contains the entry 2 PISTOL guns SENT
SURRENDER TO PHILIPPINE AIRLINE, proves that he was the one who brought the guns to Manila. While
appellant claims that he signed the Customs Declaration Form without reading it because of his excitement,
however, he does not claim that he was coerced or persuaded in affixing his signature thereon. The preparation of
the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Moreover, it
 cannot be said that appellant had already been arrested when he signed the Customs Declaration Form. He was
merely escorted by Special Agent Acierto to the arrival area of the NAIA. In fact, appellant admitted that it was only
after he signed the Customs Declaration Form that he was brought to the ground floor of NAIA for
investigation. Consequently, appellant was in constructive possession of the subject firearms. As held in People v.
Dela Rosa, the kind of possession punishable under PD 1866 is one where the accused possessed a firearm either
physically or constructively with animus possidendi or intention to possess the same. Animus possidendi is a state of
mind. As such, what goes on into the mind of the accused, as his real intent, could be determined solely based on his
prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his
possession.

Appellants witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657 from Dubai to Manila on January 30, 1996,
testified that he accepted custody of the firearms and of appellant in order that the latter, who was being detained
in Dubai for having been found in possession of firearms, would be released from custody. In other words, Capt.
Naduratas possession of the firearm during the flight from Dubai to Manila was for and on behalf of appellant.[26]

We find no cogent reason to deviate from the above findings, especially considering petitioners admission during the clarificatory
questioning by the trial court:
Court: So, it is clear now in the mind of the Court, that the firearms and ammunitions will also be with you on your
flight to Manila, is that correct?
A: Yes, your honor.

Court: [You] made mention of that condition, that the Dubai police agreed to release you provided that you will
bring the guns and ammunitions with you? Is that the condition of the Dubai Police?
A: Yes, your honor.

Court: The condition of his release was that he will have to bring the guns and ammunitions to the Philippines and
this arrangement was made by the PAL Supervisor at Dubai and it was Mr. Umayaw the PAL Supervisor,
who interceded in his behalf with the Dubai Police for his flight in the Philippines.[27]

To us, this constitutes judicial admission of his possession of the subject firearms and ammunitions. This admission, the veracity of
which requires no further proof, may be controverted only upon a clear showing that it was made through palpable mistake or that no
admission was made.[28] No such controversion is extant on record.

Moreover, we cannot ignore the Customs Declaration Form wherein it appeared that petitioner brought the firearms with him upon his
arrival in the Philippines. While there was no showing that he was forced to sign the form, petitioner can only come up with the
excuse that he was excited. Hardly can we accept such pretension.

We are likewise not swayed by petitioners contention that the lower court erroneously relied on the Customs Declaration Form since it
is not admissible in evidence because it was accomplished without the benefit of counsel while he was under police custody.

The accomplishment of the Customs Declaration Form was not elicited through custodial investigation. It is a customs requirement
which petitioner had a clear obligation to comply. As correctly observed by the CA, the preparation of the Customs Declaration Form
is a requirement for all arriving passengers in an international flight. Petitioner was among those passengers. Compliance with the
constitutional procedure on custodial investigation is, therefore, not applicable in this case. Moreover, it is improbable that the customs
police were the ones who filled out the declaration form. As will be noted, it provides details that only petitioner could have possibly
known or supplied. Even assuming that there was prior accomplishment of the form which contains incriminating details, petitioner
could have easily taken precautionary measures by not affixing his signature thereto. Or he could have registered his objection thereto
especially when no life threatening acts were being employed against him upon his arrival in the country.

Obviously, it was not only the Customs Declaration Form from which the courts below based their conclusion that petitioner was in
constructive possession of subject firearms and ammunitions. Emphasis was also given on the stipulations and admissions made
during the trial. These pieces of evidence are enough to show that he was the owner and possessor of these items.

Petitioner contends that the trial court has no jurisdiction over the case filed against him. He claims that his alleged possession of the
subject firearms transpired while he was at the Dubai Airport and his possession thereof has ceased when he left for
the Philippines. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the
exceptions provided in Article 2 of the Revised Penal Code, our criminal laws are not applicable. In short, he had not committed a
crime within the Philippines.

Indeed it is fundamental that the place where the crime was committed determines not only the venue of the action but is an essential
element of jurisdiction.[29] In order for the courts to acquire jurisdiction in criminal cases, the offense should have been committed or
any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. If the evidence adduced
during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.[30]

Contrary to the arguments put forward by petitioner, we entertain no doubt that the crime of illegal possession of firearms and
ammunition for which he was charged was committed in the Philippines. The accomplishment by petitioner of the Customs
Declaration Form upon his arrival at the NAIA is very clear evidence that he was already in possession of the subject firearms in
the Philippines.

And more than mere possession, the prosecution was able to ascertain that he has no license or authority to possess said firearms. It
bears to stress that the essence of the crime penalized under PD 1866, as amended, is primarily the accuseds lack of license to possess
the firearm. The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal possession of firearm.
Since it has been shown that petitioner was already in the Philippineswhen he was found in possession of the subject firearms and
determined to be without any authority to possess them, an essential ingredient of the offense, it is beyond reasonable doubt that the
crime was perpetrated and completed in no other place except the Philippines.

Moreover, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. In this
case, the information specifically and categorically alleged that on or about January 30, 1996 petitioner was in possession, custody and
control of the subject firearms at the Ninoy Aquino International Airport, Pasay City, Philippines, certainly a territory within the
jurisdiction of the trial court.

In contrast, petitioner failed to establish by sufficient and competent evidence that the present charge happened in Dubai. It may be
well to recall that while in Dubai, petitioner, even in a situation between life and death, firmly denied possession and ownership of the
firearms. Furthermore, there is no record of any criminal case having been filed against petitioner in Dubai in connection with the
discovered firearms. Since there is no pending criminal case when he leftDubai, it stands to reason that there was no crime committed
in Dubai. The age-old but familiar rule that he who alleges must prove his allegation applies.[31]

Petitioner finally laments the trial courts denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the
latters finding of lack of probable cause to indict him. He argues that such denial effectively deprived him of his substantive right to a
preliminary investigation.

Still, petitioners argument fails to persuade. There is nothing procedurally improper on the part of the trial court in disregarding the
result of the preliminary investigation it itself ordered. Judicial action on the motion rests in the sound exercise of judicial discretion. In
denying the motion, the trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul[32] that once a complaint
or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the
sound discretion of the court. The court is not dutifully bound by such finding of the investigating prosecutor. In Solar Team
Entertainment, Inc v. Judge How[33] we held:

It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the
court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with
the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be
an abdication of the trial courts duty and jurisdiction to determine prima facie case.

Consequently, petitioner has no valid basis to insist on the trial court to respect the result of the preliminary investigation it ordered to
be conducted.

In fine, we find no reason not to uphold petitioners conviction. The records substantiate the RTC and CAs finding that petitioner
possessed, albeit constructively, the subject firearms and ammunition when he arrived in the Philippines onJanuary 30,
1996. Moreover, no significant facts and circumstances were shown to have been overlooked or disregarded which if considered
would have altered the outcome of the case.

In the prosecution for the crime of illegal possession of firearm and ammunition, the Court has reiterated the essential elements
in People v. Eling[34] to wit: (1) the existence of subject firearm; and, (2) the fact that the accused who possessed or owned the same
does not have the corresponding license for it.

In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The existence of the subject firearms
and the ammunition were established through the testimony of Acierto. Their existence was likewise admitted by petitioner when he
entered into stipulation and through his subsequent judicial admission. Concerning petitioners lack of authority to possess the firearms,
SPO4 Bondoc, Jr. testified that upon verification, it was ascertained that the name of petitioner does not appear in the list of registered
firearm holders or a registered owner thereof. As proof, he submitted a certification to that effect and identified the same in court. The
testimony of SPO4 Bondoc, Jr. or the certification from the FEO would suffice to prove beyond reasonable doubt the second
element.[35]
A final point. Republic Act (RA) No. 8294[36] took effect on June 6, 1997 or after the commission of the crime on January 30,
1996. However, since it is advantageous to the petitioner, it should be given retrospective application insofar as the penalty is
concerned.

Section 1 of PD 1866, as amended by RA 8294 provides:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or

Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be
imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter
than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered
powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full
automatic and by burst of two or three: Provided, however, That no other crime was committed by the person
arrested.
Prision mayor in its minimum period ranges from six years and one day to eight years. Hence, the penalty imposed by the RTC as
affirmed by the CA is proper.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 21805 affirming the
January 23, 1998 Decision of the Regional Trial Court of Pasay City, Branch 109 dated January 23, 1998, convicting petitioner
Teofilo Evangelista of violation of Section 1 of Presidential Decree No. 1866, as amended, and sentencing him to suffer the penalty of
imprisonment of six years and one day to eight years and to pay a fine ofP30,000.00 is AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice
WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons attestation, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.

REYNATO S. PUNO
Chief Justice
[1]
People v. Fajardo, 123 Phil. 1348, 1351 (1966).
[2]
Rollo, pp. 3-37.
[3]
CA rollo, pp. 181-194; penned by Associate Justice Marina L. Buzon and concurred in by Associate Justices Sergio L. Pestao and
Jose Catral Mendoza (now a member of this Court).
[4]
Records, Vol. II, pp. 133-141; penned by Judge Lilia C. Lopez.
[5]
Decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In Acquisition or Disposition of Firearms,
Ammunition or Explosives.
[6]
Records, Vol. I, pp. 1-2.
[7]
Id. at 54-59.
[8]
Id. at 75-79.
[9]
Id. at 73-74.
[10]
Id. at 86.
[11]
Exhibit G, records, p. 174.
[12]
Exhibit I, id. at 177.
[13]
Exhibit J, id. at 178.
[14]
Exhibit H, id. at 175-176.
[15]
Id. at 171.
[16]
Id. at 187-199.
[17]
Id. at 212.
[18]
Id. at 293-294.
[19]
Id. at 303-304.
[20]
Records, Vol. II, pp. 1-8.
[21]
Id. at 25.
[22]
Id. at 133-141.
[23]
CA rollo, 198-206.
[24]
Rollo, p. 16.
[25]
Dacut v. Court of Appeals, G.R. No. 169434, March 28, 2008, 550 SCRA 260, 267.
[26]
CA rollo, pp. 191-192. Citations Omitted
[27]
TSN, June 30, 1997, pp. 22-23.
[28]
RULES OF COURT, Rule129, Section 4.
Sec. 4 - Judicial admissions. An admission verbal or written made by a party in the course of the proceedings in the same case does
not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such
admission was made.
[29]
People v. Macasaet, 492 Phil. 355, 370 (2005).
[30]
Uy v. Court of Appeals, 342 Phil. 329, 337 (1997).
[31]
Samson v. Daway, 478 Phil. 784, 795 (2004).
[32]
235 Phl. 465, 476 (1987).
[33]
393 Phil. 172, 181 (2000).
[34]
G.R. No. 178546, April 30, 2008, 553 SCRA 724, 738.
[35]
Valeroso v. People, G.R. No. 164815, February 22, 2008, 546 SCRA 450, 468-469.
[36]
An Act Amending the Provisions of Presidential Decree No. 1866.
 

 
 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 theAudiencia of Valladolid found that he was an illegal
aggressor, without sufficient provocation, and that there did not exists rational necessity for the
employment of the force used, and in accordance with articles 419 and 87 of the Penal Code
condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by
the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from
the facts found by the sentence to have been proven, that the accused was surprised from behind, at
 night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without
being able to distinguish with which they might have executed their criminal intent, because of the there
was no other than fire light in the room, and considering that in such a situation and when the acts
executed demonstrated that they might endanger his existence, and possibly that of his wife and child,
more especially because his assailant was unknown, he should have defended himself, and in doing so
with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he
use means which were not rationally necessary, particularly because the instrument with which he
killed was the one which he took from his assailant, and was capable of producing death, and in the
darkness of the house and the consteration which naturally resulted from such strong aggression, it
was not given him to known or distinguish whether there was one or more assailants, nor the arms
which they might bear, not that which they might accomplish, and considering that the lower court did
not find from the accepted facts that there existed rational necessity for the means employed, and that
it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of
Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the
city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8
paces, saying: "Face down, hand over you money!" because of which, and almost at the same money,
he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had
before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance,
finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am
ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his
friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility
as the author of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but
only found in favor of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to
eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal
from this sentence, holding that the accused was acting under a justifiable and excusable mistake of
fact as to the identity of the person calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme
court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone
thrown against his window — at this, he puts his head out of the window and inquires what is wanted,
and is answered "the delivery of all of his money, otherwise his house would be burned" — because of
which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same
spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense
with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to
exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed,
and condemned the accused to twelve months of prision correctional for the homicide committed. Upon
appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the
malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was
acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p.
128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of
his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief
that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he
can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his
mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he
believe threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both
instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of
the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code,
was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done
without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the
deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the
accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in
attacking with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be
sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties
provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both
instances, thereby reversing the judgment appealed from.

 
 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
ofpresidio 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 fiftypesetas.

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.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

 
 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
ofalevosia. 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.

Separate Opinions

PARAS, J., dissenting:

Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the
provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija,
the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched
on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the
said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal,
to whom the telegram received by the Provincial Inspector and a newspaper picture of Balagtas were shown.
Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to gather information
about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram,"
proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis approached Brigida
Mallari, who was then gathering banana stalks in the yard, and inquired for the room of Irene. After Mallari had
pointed out the room, she was asked by Oanis to tell where Irene's paramour, Balagtas, was, whereupon
Mallari answered that he was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after
the former had shouted "Stand up, if you are Balagtas," started shooting the man who was found by them lying
down beside a woman. The man was thereby killed, but Balagtas was still alive, for it turned out that the
person shot by Oanis and Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of
Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them
each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision
correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay
the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued
by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas
dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive
criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror,
the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order
and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in
shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas
would rather kill than be captured, the appellants did not want to take chances and should not be penalized for
such prudence. On the contrary, they should be commended for their bravery and courage bordering on
recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his room,
they proceeded thereto without hesitation and thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after
being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that
effect, was in violation of the express order given by the Constabulary authorities in Manila and which was
shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter,
any agent of the authority to have waited until they have been overpowered before trying to put our such a
character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial
Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the
express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in
view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was
deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the
realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud
warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted
authorities will, upon proper order, enforce the summary forfeiture of his life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo
Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a
superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held
criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because
they did so under an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil.,
488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing
a felony although the wrongful act done be different from that which he intended; but said article is clearly
inapplicable since the killing of the person who was believed to be Balagtas was, as already stated, not
wrongful or felonious.

The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the
defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by
mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being
a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234).
This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after he had
already surrendered and allowed himself to be bound and that the said defendants did not have lawful
instructions from superior authorities to capture Almasan dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto
Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken
by storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal
offers resistance or does something which places his captors in danger of imminent attack. Precisely, the
situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of
December 24, 1938, was very similar to this. It must be remembered that both officers received instructions to
get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also of Capt.
Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more
emphasis to the first part; namely, to take him dead. It appears in the record that after the shooting, and having
been informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they had
done. That was when all parties concerned honestly believed that the dead person was Balagtas himself, a
dangerous criminal who had escaped from his guards and was supposedly armed with a .45 caliber pistol
Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene Requinea, supposed
mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a man
closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed criminal
showed his intention to attack the appellants, a conduct easily explained by the fact that he should have felt
offended by the intrusion of persons in the room where he was peacefully lying down with his mistress. In such
predicament, it was nothing but human on the part of the appellants to employ force and to make use of their
weapons in order to repel the imminent attack by a person who, according to their belief, was Balagtas It was
unfortunate, however that an innocent man was actually killed. But taking into consideration the facts of the
case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in the case of
U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an innocent mistake of
fact committed without any fault or carelessness on the part of the accused, who having no time to make a
further inquiry, had no alternative but to take the facts as they appeared to them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which favored the
accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and
therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is
lower by one or two degrees than that prescribed by law. This incomplete justifying circumstance is that
defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty
or in the lawful exercise of a right or office." I believe that the application of this circumstance is not proper.
Article 69 of the Revised Penal Code provides as follows:

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty lower
by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the same or to exempt from criminal
liability in the several cases mentioned in articles 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the period which may be deemed proper,
in view of the number and nature of the conditions of exemption present or lacking.

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and
which was also taken from Article 87 of the Spanish Penal Code of 1870.

Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the
Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the
justifying circumstances and circumstances exempting from liability which are the subject matter of this article
are the following: self-defense, defense of relatives, defense of strangers, state of necessity and injury caused
by mere accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty
or the lawful exercise of a right, calling or office, cannot be placed within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code
of 1870 which is the source of Article 69 of our Code says:

Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una
fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de
un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia debida, ni
del que incurre en alguna omision hallandose impedido por causa legitima o insuperable, puede tener
aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de estas execiones hay
pluralidad de requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de
la razon; el autor del hecho es o no menor de nueve años; existe o no violencia material o moral
irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para declarar la
culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto que va al frente
de estas lineas rquiere, para que se imponga al autor del hecho la penalidad excepcional que
establece; esto es, que falten algunos requisitos de los que la ley exige para eximir de responsabilidad,
y que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la ley no exige
multiples condiciones.

It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required by the law to justify the same or exempt from criminal liability. The word "conditions" should
not be confused with the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states:
"There are two requisites in order that this circumstance may be taken into account: (a) That the offender acted
in the performance of his duty or in the lawful exercise of a right; and (b) That the injury or offense committed
be the necessary consequence of the performance of a duty or the lawful exercise of a right or office." It is
evident that these two requisites concur in the present case if we consider the intimate connection between the
order given to the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas
who was with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari and giving
a warning to the supposed criminal when both found him with Irene, and the statement made by Capt. Monsod
after the shooting.

If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of
the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever
hit Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver
(Exhibit L). He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt.
Valeriano Serafica. According to this witness, since Galanta was made a corporal of the Constabulary he was
given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used
by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his
trunk in the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same
revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen unused
bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular equipment of twenty
bullets which he had on the morning of December 24, 1938, when Sergeant Serafica made the usual
inspection of the firearms in the possession of the non-commissioned officers and privates of the constabulary
post at Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is corroborated
by that of a ballistic expert who testified that bullets exhibits F and O, — the first being extracted from the head
of the deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the
shooting, — had not been fired from revolver Exhibit L nor from any other revolver of the constabulary station
in Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver because when
Exhibit L was taken from him nobody in the barracks doubted that the deceased was none other than Balagtas.
Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should carry along
another gun, according to the natural course of things. On the other hand, aside from wound No. 3 as above
stated, no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's
record gives the conclusion that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor
Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber bullet, but
inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32 and not .45,
because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a
wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who performed
the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be stated that
no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why he should be
declared criminally responsible for said death.

 
 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
oficiofor 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"; and fourth, "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 temporalin 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.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-24546 February 22, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISAIAS MACALISANG, accused-appellant.

Office of the Solicitor General for plaintiff-appellee.

Rufino J. Abadies for accused-appellant.

SANCHEZ, J.:

The charge is murder. The judgment below sentenced appellant to life imprisonment, to indemnify the
heirs of the deceased in the sum of P6,000.00, and to pay the costs.

Following are the facts:

In the morning of November 14, 1949, two bloody incidents occurred in the town of Sinacaban, Misamis
Occidental.

About 9:00 o'clock in the morning of that day, Victoriano Simbajon, defeated candidate for Mayor of
Sinacaban, approached incumbent Mayor Sofronio Avanceña, his opponent and the victor, near the municipal
building. Victoriano Simbajon — who was then accompanied by his son, Panfilo, and his son-in-law, Arturo
Yap — while still at a distance, raised his hands apparently to signify that he accepted defeat, invited the
Mayor to ride with him in his jeep in going to a wedding party to which both were invited. Mayor Avanceña
politely declined. Simbajon and his party left, went down the slope leading to the national highway.

Sometime later, Avanceña followed by the Chief of Police, herein appellant Isaias Macalisang, and
Patrolman Liborio Dominguez left on foot, followed the same route. As they approached the highway, Simbajon
— then standing near the house of one Isabelo Plaza — again offered his jeep to Avanceña. The latter again
declined, stated that he would take the jeep of the municipal health officer. Immediately thereafter, there was a
burst of gunfire in rapid succession. Mayor Avanceña was mortally wounded; his two companions critically
wounded.

Parenthetically, for these crimes, Victoriano Simbajon, Feliciano Simbajon, Panfilo Simbajon and
Bonifacio Simbajon, in separate cases jointly tried, were prosecuted for (1) the murder of Mayor Avanceña, (2)
the frustrated murder of herein appellant Isaias Macalisang, and (3) the frustrated murder of Patrolman Liborio
Dominguez. They were all convicted below. For the crime of murder, they were all sentenced to reclusion
perpetua, and for the two other crimes, they were separately given prison terms by the trial court. Bonifacio
Simbajon did not appeal. The judgment as to the rest was affirmed by this Court on September 30, 1965 (G.R.
No. L-18073-75), with a slight modification as to the penalty for the frustrated murders.

Minutes after the incident heretofore described, Fr. William Bourke, the town parish priest, who heard the
shots, came upon the scene of the crime together with his houseboy, Benjamin Lopez, in the former's jeep. He
administered the last sacraments. Appellant Isaias Macalisang was lifted by Benjamin Lopez and placed in the
front seat of the jeep between him and Fr. Bourke, who was at the wheel. They proceeded to Ozamis City.
While the jeep was negotiating a curve in Barrio Casoy of Sinacaban, appellant Macalisang pointed his gun at
Francisco Dano, who was at the curb of the road by the mountainside, and fired. Francisco Dano was hit. The
bullet entered his back at the right of the mid-spinal line; it came out thru the right chest. He shouted to his
wife: "Help help, Day, I am hit by the gun. Help, I will die." Francisco Dano's wife, Perfecta, rushed to his side
and found that he was bleeding in front and in the back of his body. She asked Dano who shot him. Dano's
reply: "Chief Isaias Macalisang." Brought to Ozamis City, Dano expired on the same day.

Came the present prosecution for murder with the result noted at the start of this opinion.

1. That it was appellant Macalisang who fired the shot which killed Dano, we do not doubt. Upon hearing
the shot, Fr. Bourke saw the gun held by appellant still pointed at the side of the road. Benjamin Lopez testified
that he first noticed the deceased Dano some forty meters away; that as they were getting closer to Dano,
appellant took his gun from his lap, pointed it the former, fired once; that he grabbed the gun from Macalisang;
that thereafter, they proceeded to Ozamis City; and that there, Fr. Bourke took the gun from him and
surrendered it to the Philippine Constabulary. And then, there is the testimony of Perfecta vda. de Dano that
when she approached her husband, the latter told her that it was Chief Macalisang who shot him. This is in the
nature of a dying declaration. At that time, Dano felt that he was at the point of death. Indeed, he was in a very
serious condition. In fact, he died on the same day. 1

2. But appellant pleads that he was unconscious or under shock at the time the act was committed. The
factual support for this is that in the earlier incident, he received gunshot wounds "from the point of my penis
hitting my . . . (gonads) to my lap"; that his left leg was broken; that he fell into the canal. He further relates that
from then on, he lost consciousness until he was already treated at the Medina Hospital in Ozamis City. As
prop for his testimony, he presented Dr. Rico Medina, his attending physician.

The doctor's version is that appellant was in a very serious condition when brought to the hospital
because of the bullet wound he suffered at the tip of the penis that pierced the right lateral portion of the
scrotum, the bullet wound on the lower, right extremity, and loss of blood. According to the doctor, these
injuries would cause momentary unconsciousness for a length of time depending upon the resistance of the
patient. Appellant is robust. In this case, the doctor opines that "there is very big probability" that Macalisang
"during the time of the accident was unconscious." He stressed, however, that it was possible that Macalisang
could "recover consciousness after 10 minutes," could have recognized persons, and could have been in full
control of the upper extremities which were not affected at all by the wounds.

Appellant's testimony falls far short of convincing us, as it did not convince the lower court, that he did
not deliberately fire at Dano. He was, indeed, conscious at that time. When placed on the jeep, he took the
precaution of placing his service revolver on his lap. Lopez saw him take that gun and fire at Dano. The priest,
upon hearing the shot, saw appellant with the gun still pointed at the side of the road. The version of Captain
Benjamin Rafols, who interviewed appellant in the hospital furnishes the clincher. Appellant admitted to the
captain, "I was the one who shot Mr. Dano." This statement is definite, although the captain stated that
Macalisang was confused as to the shooting incident that occurred earlier in the morning.

And then, the doctor affirmed that it was possible that appellant could have regained consciousness after
10 minutes. Between the time appellant was hit by gunfire to the time the priest in his jeep came by, the
evidence is that about 10 to 15 minutes transpired. A criminal act is presumed to be voluntary. We cannot
seize upon speculation or guesswork to overturn this presumption.

At any rate, between the self-serving version of appellant and the indecisive testimony of his doctor, on
the one hand, and the positive assertion of Fr. Bourke, witness Lopez and Capt. Rafols, on the other, the
choice is clear. Fact prevails over assumption.

Absent an aboveboard explanation, the shooting must be declared voluntary and

punishable.1äwphï1.ñët

3. Treachery, according to the decision below, qualifies the crime as murder. Appellant's assertion to the
contrary is not to be slightly taken. It deserves serious consideration.
 Jurisprudence has it that the mere location of the bullet wound at the back — as is the case here — by
itself, does not prove treachery. 2 Neither will suddenness of the attack alone. 3 Even if the purpose was to kill,
so long as the decision was sudden and the victim's position accidental, no treachery attaches to the killing. 4

The question of treachery perhaps may not be thoroughly understood except in the peculiar setting of
this case. Appellant knew that Dano was the chief adviser of the defeated candidate for Mayor, Victoriano
Simbajon. Dano delivered speeches against Mayor Sofronio Avanceña and wrote leaflets attacking the latter.
Chief of Police Macalisang, in turn, was a supporter of the deceased Mayor Avanceña. After Macalisang was
wounded, he did not go in search of Dano. It just so happened that on his way to Ozamis City, he saw Dano on
the road. Appellant was in a running jeep; the victim standing at the side of the road. It was an impulse of the
moment that led to the attack which caused death.

The resulting crime is not murder qualified by treachery. Because, it does not appear that "the method of
assault adopted by the aggressor was deliberately chosen with a special view to the accomplishment of the act
without risk to the assailant from any defense that the party assailed may make." 5

With treachery eliminated, the crime thus committed is homicide. The amended information charged that
appellant is a recidivist. He was really convicted of serious physical injuries and less serious physical injuries
on September 4, 1941. 6 Therefore, the homicide herein committed is attended by one aggravating
circumstance, with none in mitigation. The penalty should be reclusion temporal in the maximum period.

We, accordingly, modify the judgment appealed from, 7 and sentence defendant for the crime of
homicide to suffer imprisonment for an indeterminate period ranging from eight (8) years and one (1) day
of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal,
as maximum, to indemnify the heirs of the deceased Francisco Dano in the sum of P6,000.00, without
subsidiary imprisonment in case of insolvency, but with the accessories of the law, and to pay the costs. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro, Angeles and Fernando,
JJ., concur.1äwphï1.ñët

Footnotes

1Section 31, Rule 130, Rules Court; 5 Moran, Comments on the Rules of Court, 1963 ed., pp. 282-283.

2U.S. vs. Perdon, 4 Phil. 143-144; U. S. vs. Pangilion, 34 Phil. 786, 792-793; U. S. vs. Atig, 36 Phil.
303, 312; People vs. Abril, 51 Phil. 670, 675; People vs. Embalido 58 Phil. 152, 153.

3Ramos vs. People, 1967C Phil. 431, 436, citing Perez vs. Court of Appeals, L-13719, March 31, 1965.

4
People vs. Cadag, L-13830, May 31, 1961.

5
People vs. Cañete, 44 Phil. 478, 481, citing Viada, 2 Supp., 3d ed., p. 76; Emphasis supplied. See:
U.S. vs. Devela, 3 Phil. 625, 628; U.S. vs. Namit, 38 Phil. 926, 929; People vs. Calinawan, 83 Phil. 647,
648; People vs. Tumaob, 83 Phil. 738, 742; People vs. Abalos, 84 Phil. 771, 773; People vs.
Cadag, supra.

6CriminalCase 1984, Court of First Instance of Misamis Occidental, entitled "El Pueblo de Filipinas,
Querellante contra Isaias Macalisang, Acusado." See Exhibit D-1.

7Criminal Case 5131, Court of First Instance of Misamis Occidental, entitled "People of the Philippines,
Plaintiff, versus Isaias Macalisang, Accused."

 
 Republic of the Philippines 

Supreme Court 

Manila  

SECOND DIVISION 

   

HILARIO P. SORIANO,     G.R. No. 162336 

Petitioner,       

        

‐ versus ‐     Present: 

        

PEOPLE OF THE PHILIPPINES,     CARPIO, J., Chairperson, 

BANGKO SENTRAL NG     CORONA, 

PILIPINAS (BSP), PHILIPPINE     BRION, 

DEPOSIT INSURANCE     DEL CASTILLO, and 

CORPORATION (PDIC), PUBLIC     PEREZ, JJ. 

PROSECUTOR ANTONIO C.       

BUAN, and STATE       

PROSECUTOR ALBERTO R.     Promulgated: 

FONACIER,       

Respondents. [1]     February 1, 2010 

x ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x 

D E C I S I O N  

DEL CASTILLO, J.: 

A bank officer violates the DOSRI[2] law when he acquires bank funds for his personal benefit, even if such acquisition was facilitated 
by a fraudulent loan application. Directors, officers, stockholders, and their related interests cannot be allowed to interpose the 
fraudulent nature of the loan as a defense to escape culpability for their circumvention of Section 83 of Republic Act (RA) No. 337.[3] 

Before  us  is  a  Petition  for  Review  on Certiorari[4] under  Rule  45  of  the  Rules  of  Court,  assailing  the September  26, 
2003 Decision[5] and the February 5, 2004 Resolution[6] of the Court of Appeals (CA) in CA‐G.R. SP No. 67657. The challenged Decision 
disposed as follows: 
 WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED.[7]  

Factual Antecedents  

Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through its officers,[8] transmitted 
a letter[9] dated March 27, 2000 to Jovencito Zuo, Chief State Prosecutor of the Department of Justice (DOJ). The letter attached as 
annexes five affidavits,[10] which would allegedly serve as bases for filing criminal charges for Estafa thru Falsification of Commercial 
Documents,  in  relation  to  Presidential  Decree  (PD)  No.  1689,[11] and  for  Violation  of  Section  83  of  RA  337,  as  amended  by  PD 
1795,[12] against, inter alia, petitioner herein Hilario P. Soriano. These five affidavits, along with other documents, stated that spouses 
Enrico and Amalia Carlos appeared to have an outstanding loan of P8 million with the Rural Bank of San Miguel (Bulacan), Inc. 
(RBSM), but had never applied for nor received such loan; that it was petitioner, who was then president of RBSM, who had ordered, 
facilitated, and received the proceeds of the loan; and that the P8 million loan had never been authorized by RBSM's Board of 
Directors and no report thereof had ever been submitted to the Department of Rural Banks, Supervision and Examination Sector of 
the  BSP. The  letter  of the OSI, which was  not subscribed under  oath,  ended with  a request that  a  preliminary investigation  be 
conducted and the corresponding criminal charges be filed against petitioner at his last known address. 

Acting on the letter‐request and its annexes, State Prosecutor Albert R. Fonacier proceeded with the preliminary investigation. He 
issued a subpoena with the witnesses affidavits and supporting documents attached, and required petitioner to file his counter‐
affidavit. In due course, the investigating officer issued a Resolution finding probable cause and correspondingly filed two separate 
informations against petitioner before the Regional Trial Court (RTC) of Malolos, Bulacan.[13] 

The  first  Information,[14] dated November  14,  2000 and  docketed  as  Criminal  Case  No.  237‐M‐2001,  was  for  estafa  through 
falsification of commercial documents, under Article 315, paragraph 1(b), of the Revised Penal Code (RPC), in relation to Article 172 
of the RPC and PD 1689. It basically alleged that petitioner and his co‐accused, in abuse of the confidence reposed in them as RBSM 
officers, caused the falsification of a number of loan documents, making it appear that one Enrico Carlos filled up the same, and 
thereby succeeded in securing a loan and converting the loan proceeds for their personal gain and benefit.[15] The information reads: 

That  in  or  about  the  month  of  April,  1997,  and  thereafter,  in  San  Miguel,  Bulacan,  and  within  the 
jurisdiction of this Honorable Court, the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals 
by  direct  participation,  with  unfaithfulness  or  abuse  of  confidence  and  taking  advantage  of  their  position  as 
President of the Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel San 
Miguel  Branch  [sic], a  duly  organized  banking  institution  under  Philippine  Laws,  conspiring,  confederating  and 
mutually helping one another, did then and there, willfully and feloniously falsify loan documents consisting of 
undated loan application/information sheet, credit proposal dated April 14, 1997, credit proposal dated April 22, 
1997, credit investigation report dated April 15, 1997, promissory note dated April 23, 1997, disclosure statement 
on loan/credit transaction dated April 23, 1997, and other related documents, by making it appear that one Enrico 
Carlos filled up the application/information sheet and filed the aforementioned loan documents when in truth and 
in  fact  Enrico  Carlos  did  not  participate  in  the  execution  of  said  loan  documents  and  that  by  virtue  of  said 
falsification and with deceit and intent to cause damage, the accused succeeded in securing a loan in the amount 
of eight million pesos (PhP8,000,000.00) from the Rural Bank of San Miguel San Ildefonso branch in the name of 
Enrico Carlos which amount of PhP8 million representing the loan proceeds the accused thereafter converted the 
same  amount  to  their  own  personal  gain  and  benefit,  to  the  damage  and  prejudice  of  the  Rural  Bank  of  San 
Miguel San Ildefonso branch, its creditors, the Bangko Sentral ng Pilipinas, and the Philippine Deposit Insurance 
Corporation. 
 CONTRARY TO LAW.[16] 

The other Information[17] dated November 10, 2000 and docketed as Criminal Case No. 238‐M‐2001, was for violation of Section 83 
of RA 337, as amended by PD 1795. The said provision refers to the prohibition against the so‐called DOSRI loans. The information 
alleged that, in his capacity as President of RBSM, petitioner indirectly secured an P8 million loan with RBSM, for his personal use 
and benefit, without the written consent and approval of the bank's Board of Directors, without entering the said transaction in the 
bank's  records,  and  without  transmitting  a  copy  of  the  transaction  to  the  supervising  department  of  the  bank.  His  ruse  was 
facilitated by placing the loan in the name of an unsuspecting RBSM depositor, one Enrico Carlos.[18] The information reads: 

That in or about the month of April, 1997, and thereafter, and within the jurisdiction of this Honorable
Court, the said accused, in his capacity as President of the Rural Bank of San Miguel (Bulacan), Inc., did then and
there, willfully and feloniously indirectly borrow or secure a loan with the Rural Bank of San Miguel San Ildefonso
branch, a domestic rural banking institution created, organized and existing under Philippine laws, amounting to
eight million pesos (PhP8,000,000.00), knowing fully well that the same has been done by him without the written
consent and approval of the majority of the board of directors of the said bank, and which consent and approval the
said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to
transmit a copy thereof to the supervising department of the said bank, as required by the General Banking Act, by
using the name of one depositor Enrico Carlos of San Miguel, Bulacan, the latter having no knowledge of the said
loan, and one in possession of the said amount of eight million pesos (PhP8,000,000.00), accused converted the
same to his own personal use and benefit, in flagrant violation of the said law.

CONTRARY TO LAW.[19]

Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan.[20]

On June 8, 2001, petitioner moved to quash[21] these informations on two grounds: that the court had no jurisdiction over the offense

charged, and that the facts charged do not constitute an offense.

On the first ground, petitioner argued that the letter transmitted by the BSP to the DOJ constituted the complaint and hence was

defective for failure to comply with the mandatory requirements of Section 3(a), Rule 112 of the Rules of Court, such as the statement

of address of petitioner and oath and subscription.[22] Moreover, petitioner argued that the officers of OSI, who were the signatories to

the letter-complaint, were not authorized by the BSP Governor, much less by the Monetary Board, to file the complaint. According to

petitioner, this alleged fatal oversight violated Section 18, pars. (c) and (d) of the New Central Bank Act (RA 7653).

On the second ground, petitioner contended that the commission of estafa under paragraph 1(b) of Article 315 of the RPC is

inherently incompatible with the violation of DOSRI law (as set out in Section 83[23] of RA 337, as amended by PD 1795),[24] hence a

person cannot be charged for both offenses. He argued that a violation of DOSRI law requires the offender to obtain a loan from his

bank, without complying with procedural, reportorial, or ceiling requirements. On the other hand, estafa under par. 1(b), Article 315 of

the RPC requires the offender to misappropriate or convert something that he holds in trust, or on commission, or for

administration, or under any other obligation involving the duty to return the same.[25]
 Essentially, the petitioner theorized that the characterization of possession is different in the two offenses. If petitioner

acquired the loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate or convert it as contemplated in the

offense of estafa. Conversely, if petitioner committed estafa, then he merely held the money in trust for someone else and therefore,

did not acquire a loan in violation of DOSRI rules.

Ruling of the Regional Trial Court

In an Order[26] dated August 8, 2001, the trial court denied petitioner's Motion to Quash for lack of merit. The lower court agreed with

the prosecution that the assailed OSI letter was not the complaint-affidavit itself; thus, it need not comply with the requirements under

the Rules of Court. The trial court held that the affidavits, which were attached to the OSI letter, comprised the complaint-affidavit in

the case. Since these affidavits were duly subscribed and sworn to before a notary public, there was adequate compliance with the

Rules. The trial court further held that the two offenses were separate and distinct violations, hence the prosecution of one did not pose

a bar to the other.[27]

Petitioners Motion for Reconsideration was likewise denied in an Order dated September 5, 2001.[28]

Aggrieved, petitioner filed a Petition for Certiorari[29] with the CA, reiterating his arguments before the trial court.
 

Ruling of the Court of Appeals 

  

The CA denied the petition on both issues presented by petitioner. 

  

On the first issue, the CA determined that the BSP letter, which petitioner characterized to be a fatally infirm complaint, was not 
actually a complaint, but a transmittal or cover letter only. This transmittal letter merely contained a summary of the affidavits 
which were attached to it. It did not contain any averment of personal knowledge of the events and transactions that constitute the 
elements of the offenses charged. Being a mere transmittal letter, it need not comply with the requirements of Section 3(a) of Rule 
112 of the Rules of Court.[30] 

  

The CA further determined that the five affidavits attached to the transmittal letter should be considered as the complaint‐affidavits 
that charged petitioner with violation of Section 83 of RA 337 and for Estafa thru Falsification of Commercial Documents. These 
complaint‐affidavits complied with the mandatory requirements set out in the Rules of Court they were subscribed and sworn to 
before a notary public  and  subsequently certified by  State Prosecutor Fonacier, who personally examined the affiants and was 
convinced that the affiants fully understood their sworn statements.[31] 

Anent the second ground, the CA found no merit in petitioner's argument that the violation of the DOSRI law and the commission of 
estafa  thru  falsification  of  commercial  documents  are  inherently  inconsistent  with  each  other. It  explained  that  the  test  in 
considering a motion to quash on the ground that the facts charged do not constitute an offense, is whether the facts alleged, when 
hypothetically admitted, constitute the elements of the offense charged. The appellate court held that this test was sufficiently met 
because the allegations in the assailed informations, when hypothetically admitted, clearly constitute the elements of Estafa thru 
Falsification of Commercial Documents and Violation of DOSRI law.[32] 

Petitioners Motion for Reconsideration[33] was likewise denied for lack of merit. 

Hence, this petition. 

Issues 

Restated, petitioner raises the following issues[34] for our consideration:  

I 

Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the 
Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653. 

II 

Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) 
could also be the subject of Estafa under Article 315 (1) (b) of the Revised Penal Code. 

III 

Is a petition for certiorari under Rule 65 the proper remedy against an Order denying a Motion to Quash? 

IV 

Whether petitioner is entitled to a writ of injunction.  

Our Ruling 

The petition lacks merit. 

First Issue: 

Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of 
the Rules of Court and Section 18, paragraphs (c) and (d) of 

Republic Act No. 7653 

Petitioner moved to withdraw the first issue from the instant petition 

  
On March 5, 2007, the Court noted[35] petitioner's Manifestation and Motion for Partial Withdrawal of the Petition[36] dated February 
7,  2007. In  the  said  motion,  petitioner  informed  the  Court  of  the  promulgation  of  a  Decision  entitledSoriano  v.  Hon. 
Casanova,[37] which also involved petitioner and similar BSP letters to the DOJ. According to petitioner, the said Decision allegedly 
ruled squarely on the nature of the BSP letters and the validity of the sworn affidavits attached thereto. For this reason, petitioner 
moved for the partial withdrawal of the instant petition insofar as it involved the issue of whether or not a court can legally acquire 
jurisdiction over a complaint which failed to comply with the mandatory requirements provided under Section 3(a), Rule 112 of the 
Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.[38] 

Given that the case had already been submitted for resolution of the Court when petitioner filed his latest motion, and that all 
respondents had presented their positions and arguments on the first issue, the Court deems it proper to rule on the same. 

In Soriano  v.  Hon.  Casanova,  the  Court  held  that  the affidavits 

attached to the BSP transmittal letter complied with the mandatory 
requirements under the Rules of Court.  

To  be  sure,  the  BSP  letters  involved  in Soriano  v.  Hon.  Casanova[39] are not the  same  as  the  BSP  letter  involved  in  the  instant 
case. However, the BSP letters in Soriano v. Hon. Casanova and the BSP letter subject of this case are similar in the sense that they 
are all signed by the OSI officers of the BSP, they were not sworn to by the said officers, they all contained summaries of their 
attached affidavits, and they all requested the conduct of a preliminary investigation and the filing of corresponding criminal charges 
against petitioner Soriano. Thus, the principle of stare decisis dictates that the ruling in Soriano v. Hon. Casanova be applied in the 
instant case once a question of law has been examined and decided, it should be deemed settled and closed to further argument.[40] 

We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted by the BSP to the DOJ, that these were 
not intended to be the complaint, as envisioned under the Rules. They did not contain averments of personal knowledge of the 
events and transactions constitutive of any offense. The letters merely transmitted for preliminary investigation the affidavits of 
people who had personal knowledge of the acts of petitioner. We ruled that these affidavits, not the letters transmitting them, 
initiated  the  preliminary  investigation. Since  these  affidavits  were  subscribed  under  oath  by  the  witnesses  who  executed  them 
before a notary public, then there was substantial compliance with Section 3(a), Rule 112 of the Rules of Court.  

Anent the contention that there was no authority from the BSP Governor or the Monetary Board to file a criminal case against 
Soriano, we held that the requirements of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because the BSP did not 
institute the complaint but merely transmitted the affidavits of the complainants to the DOJ. 

We further held that since the offenses for which Soriano was charged were public crimes, authority holds that it can be initiated by 
any competent person with personal knowledge of the acts committed by the offender. Thus, the witnesses who executed the 
affidavits clearly fell within the purview of any competent person who may institute the complaint for a public crime. 

The  ruling  in Soriano  v.  Hon.  Casanova has  been  adopted  and  elaborated  upon  in  the  recent  case  of Santos‐Concio  v. 
Department of Justice.[41] Instead of a transmittal letter from the BSP, the Court in Santos‐Concio was faced with an NBI‐NCR Report, 
likewise  with  affidavits  of  witnesses  as  attachments. Ruling  on  the  validity  of  the  witnesses  sworn  affidavits  as  bases  for  a 
preliminary investigation, we held: 

  
 The Court is not unaware of the practice of incorporating all allegations in one document denominated as 
complaint‐affidavit. It does not pronounce strict adherence to only one approach, however, for there are cases 
where the extent of ones personal knowledge may not cover the entire gamut of details material to the alleged 
offense.  The private offended party or relative of the deceased may not even have witnessed the fatality, in which 
case  the  peace  officer  or  law  enforcer  has  to  rely  chiefly  on  affidavits  of  witnesses.   The  Rules  do  not  in  fact 
preclude  the  attachment  of  a  referral  or  transmittal  letter  similar  to  that  of  the  NBI‐NCR.   Thus,  in Soriano  v. 
Casanova, the Court held: 

              A  close  scrutiny  of  the letters  transmitted by  the  BSP  and  PDIC  to  the  DOJ  shows  that 
these were not intended  to  be the complaint  envisioned  under  the  Rules.   It  may  be  clearly 
inferred from the tenor of the letters that the officers merely intended to transmit the affidavits 
of the bank employees to the DOJ.  Nowhere in the transmittal letters is there any averment on 
the  part  of  the  BSP  and  PDIC  officers  of  personal  knowledge  of  the  events  and  transactions 
constitutive of the criminal  violations  alleged to have  been made  by  the  accused. In fact, the 
letters clearly stated that what the OSI of the BSP and the LIS of the PDIC did was to respectfully 
transmit to the DOJ for preliminary investigation the affidavits and personal knowledge of the 
acts  of  the  petitioner. These  affidavits  were  subscribed  under  oath  by  the  witnesses  who 
executed them before a notary public.  Since the  affidavits,  not  the  letters  transmitting them, 
were intended to initiate the preliminary investigation, we hold that Section 3(a), Rule 112 of the 
Rules of Court was substantially complied with. 

             Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held 
that a complaint for purposes of preliminary investigation by the fiscal need not be filed by the 
offended party.  The rule has been that, unless the offense subject thereof is one that cannot be 
prosecuted de  oficio, the  same  may  be  filed,  for  preliminary  investigation  purposes,  by any 
competent  person.   The  crime  of  estafa  is  a  public  crime  which  can  be  initiated  by  any 
competent  person.   The  witnesses  who  executed  the  affidavits  based  on  their  personal 
knowledge of the acts committed by the petitioner fall within the purview of any competent 
person who may institute the complaint for a public crime. x x x (Emphasis and italics supplied)    

         

     A  preliminary  investigation  can  thus  validly  proceed  on  the  basis  of  an  affidavit  of  any competent  person, 
without the referral document, like the NBI‐NCR Report, having been sworn to by the law enforcer as the nominal 
complainant.  To require otherwise is a needless exercise.  The cited case of Oporto, Jr. v. Judge Monserate does 
not appear to dent this proposition.  After all, what is required is to reduce the evidence into affidavits, for while 
reports and even raw information may justify the initiation of an investigation, the preliminary investigation stage 
can  be  held  only  after  sufficient  evidence  has  been  gathered  and  evaluated  which  may  warrant  the  eventual 
prosecution of the case in court.[42] 

 Following the foregoing rulings in Soriano v. Hon. Casanova and Santos‐Concio v. Department of Justice, we hold that the BSP letter, 
taken together with the affidavits attached thereto, comply with the requirements provided under Section 3(a), Rule 112 of the 
Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653. 

 
 Second Issue:  

Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) 
could be the subject of Estafa under Article 315 (1) (b) of the 

Revised Penal Code 

The second issue was raised by petitioner in the context of his Motion to Quash Information on the ground that the facts 
charged do not constitute an offense.[43] It is settled that in considering a motion to quash on such ground, the test is whether the 
facts alleged, if hypothetically admitted, would establish the essential elements of the offense charged as defined by law. The trial 
court may not consider a situation  contrary to that set forth in the criminal complaint or information. Facts that constitute  the 
defense  of  the  petitioner[s]  against  the  charge  under  the  information  must  be  proved  by  [him]  during  trial.  Such  facts  or 
circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments 
do not constitute the offense. [44] 

We  have  examined  the  two  informations  against  petitioner  and  we  find  that  they  contain  allegations  which,  if  hypothetically 
admitted,  would  establish  the  essential  elements  of  the  crime  of  DOSRI  violation  and  estafa  thru  falsification  of  commercial 
documents. 

In Criminal Case No. 238‐M‐2001 for violation of DOSRI rules, the information alleged that petitioner Soriano was the president of 
RBSM; that he was able to indirectly obtain a loan from RBSM by putting the loan in the name of depositor Enrico Carlos; and that 
he did this without complying with the requisite board approval, reportorial, and ceiling requirements. 

In Criminal Case No. 237‐M‐2001 for estafa thru falsification of commercial documents, the information alleged that petitioner, by 
taking advantage of his position as president of RBSM, falsified various loan documents to make it appear that an Enrico Carlos 
secured a loan of P8 million from RBSM; that petitioner succeeded in obtaining the loan proceeds; that he later converted the loan 
proceeds to his own personal gain and benefit; and that his action caused damage and prejudice to RBSM, its creditors, the BSP, and 
the PDIC. 

Significantly,  this  is  not  the  first  occasion  that  we  adjudge  the  sufficiency  of  similarly  worded  informations. In Soriano  v. 
People,[45] involving the same petitioner in this case (but different transactions), we also reviewed the sufficiency of informations for 
DOSRI violation and estafa thru falsification of commercial documents, which were almost identical, mutatis mutandis, with the 
subject informations herein. We held in Soriano v. People that there is no basis for the quashal of the informations as they contain 
material allegations charging Soriano with violation of DOSRI rules and estafa thru falsification of commercial documents. 

Petitioner raises the theory that he could not possibly be held liable for estafa in concurrence with the charge for DOSRI 
violation. According  to  him,  the  DOSRI  charge  presupposes  that  he  acquired  a  loan,  which  would  make  the  loan  proceeds 
his own money and which he could neither possibly misappropriate nor convert to the prejudice of another, as required by the 
statutory definition of estafa.[46] On the other hand, if petitioner did not acquire any loan, there can be no DOSRI violation to speak 
of. Thus, petitioner posits that the two offenses cannot co‐exist. This theory does not persuade us. 

Petitioners theory is based on the false premises that the loan was extended to him by the bank in his own name, and that 
he became the owner of the loan proceeds. Both premises are wrong. 

  
 The  bank  money  (amounting  to P8  million)  which  came  to  the  possession  of  petitioner  was  money  held  in  trust or 
administration by him for the bank, in his  

fiduciary  capacity  as  the  President  of  said  bank.[47] It  is  not  accurate  to  say  that  petitioner  became  the  owner  of  the P8  million 
because  it  was  the  proceeds  of  a  loan. That  would  have  been  correct  if  the  bank knowingly extended  the  loan  to  petitioner 
himself. But that is not the case here. According to the information for estafa, the loan was supposed to be for another person, a 
certain Enrico Carlos; petitioner, through falsification, made it appear that said Enrico Carlos applied for the loan when in fact he 
(Enrico  Carlos)  did  not. Through  such  fraudulent  device,  petitioner  obtained  the  loan  proceeds  and  converted  the  same. Under 
these circumstances, it cannot be said that petitioner became the legalowner of the P8 million. Thus, petitioner remained the banks 
fiduciary with respect to that money, which makes it capable of misappropriation or conversion in his hands. 

The next question is whether there can also be, at the same time, a charge for DOSRI violation in such a situation wherein 
the accused bank officer did not secure a loan in his own name, but was alleged to have used the name of another person in order 
to indirectly secure a loan from the bank. We answer this in the affirmative. Section 83 of RA 337 reads: 

Section 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or 
as the representative or agent of others, borrow any of the deposits of funds of such bank, nor shall he become a 
guarantor, indorser, or surety for loans from such bank to others, or in any manner be an obligor  for moneys 
borrowed from the bank or loaned by it, except with the written approval of the majority of the directors of the 
bank, excluding the director concerned. Any such approval shall be entered upon the records of the corporation 
and a copy of such entry shall be transmitted forthwith to the Superintendent of Banks. The office of any director 
or officer of a bank who violates the provisions of this section shall immediately become vacant and the director or 
officer shall be punished by imprisonment of not less than one year nor more than ten years and by a fine of not 
less than one thousand nor more than ten thousand pesos. x x x  

The prohibition in Section 83 is broad enough to cover various modes of borrowing.[48] It covers loans by a bank director or officer
(like herein petitioner) which are made either: (1) directly, (2) indirectly, (3) for himself, (4) or as the representative or agent of others.
It applies even if the director or officer is a mere guarantor, indorser or surety for someone else's loan or is in any manner an obligor
for money borrowed from the bank or loaned by it. The covered transactions are prohibited unless the approval, reportorial and
ceiling requirements under Section 83 are complied with. The prohibition is intended to protect the public, especially the depositors,[49]
from the overborrowing of bank funds by bank officers, directors, stockholders and related interests, as such overborrowing may lead
to bank failures.[50] It has been said that banking institutions are not created for the benefit of the directors [or officers]. While directors
have great powers as directors, they have no special privileges as individuals. They cannot use the assets of the bank for their own
benefit except as permitted by law. Stringent restrictions are placed about them so that when acting both for the bank and for one of
themselves at the same time, they must keep within certain prescribed lines regarded by the legislature as essential to safety in the
banking business.[51]

A direct borrowing is obviously one that is made in the name of the DOSRI himself or where the DOSRI is a named party, 
while an indirect borrowing includes one that is made by a third party, but the DOSRI has a stake in the transaction.[52] The latter type 
indirect borrowing applies here. The information in Criminal Case 238‐M‐2001 alleges that petitioner in his capacity as President of 
Rural Bank of San Miguel San Ildefonso branch x x x indirectlyborrow[ed] or secure[d] a loan with [RBSM] x x x knowing fully well 
that the same has been done by him without the written consent and approval of the majority of the board of directors x x x, and 
which consent and approval the said accused deliberately failed to obtain and enter the same upon the records of said banking 
institution and to transmit a copy thereof to the supervising department of the said bank x x x by using the name of one depositor 
Enrico Carlos x x x, the latter having no knowledge of the said loan, and once in possession of the said amount of eight million pesos 
(P8 million), [petitioner] converted the same to his own personal use and benefit.[53]  

The foregoing information describes the manner of securing the loan as indirect; names petitioner as the benefactor of the 
indirect loan; and states that the requirements of the law were not complied with. It contains all the required elements[54] for a 
violation of Section 83, even if petitioner did not secure the loan in his own name. 

 The broad interpretation of the prohibition in Section 83 is justified by the fact that it even expressly covers loans to third 
parties where the third parties are aware of the transaction (such as principals represented by the DOSRI), and where the DOSRIs 
interest does not appear to be beneficial but even burdensome (such as in cases when the DOSRI acts as a mere guarantor or 
surety). If the law finds it necessary to protect the bank and the banking system in such situations, it will surely be illogical for it to 
exclude  a  case  like  this  where  the  DOSRI  acted for his  own  benefit,  using  the name  of  an  unsuspecting  person. A  contrary 
interpretation will effectively allow a DOSRI to use dummies to circumvent the requirements of the law. 

In sum, the informations filed against petitioner do not negate each other. 

Third Issue:
 
Is a Rule 65 petition for certiorari the proper remedy against

an Order denying a Motion to Quash?  

This issue may be speedily resolved by adopting our ruling in Soriano v. People,[55] where we held:

In fine, the Court has consistently held that a special civil action for certiorari is not the proper remedy to
assail the denial of a motion to quash an information. The proper procedure in such a case is for the accused to enter
a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash
and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by
law. Thus, petitioners should not have forthwith filed a special civil action for certiorari with the CA and instead,
they should have gone to trial and reiterated the special defenses contained in their motion to quash. There are no
special or exceptional circumstances in the present case that would justify immediate resort to a filing of a petition
for certiorari. Clearly, the CA did not commit any reversible error, much less, grave abuse of discretion in
dismissing the petition.[56]
  

Fourth Issue:  

Whether petitioner is entitled to a writ of injunction 

The requisites to justify an injunctive relief are: (1) the right of the complainant is clear and unmistakable; (2) the invasion of the right 
sought to be protected is material and substantial; and (3) there is an urgent and paramount necessity for the writ to prevent 
serious damage. A clear legal right means one clearly founded in or granted by law or is enforceable as a matter of law. Absent any 
clear and unquestioned legal right, the issuance of an injunctive writ would constitute grave abuse of discretion.[57] Caution and 
prudence must, at all times, attend the issuance of an injunctive writ because it effectively disposes of the main case without trial 
and/or due process.[58] In Olalia v. Hizon,[59] the Court held as follows: 

  
 It has been consistently held that there is no power the exercise of which is more delicate, which requires 
greater caution, deliberation and sound discretion, or more dangerous in a doubtful case, than the issuance of an 
injunction. It is the strong arm of equity that should never be extended unless to  cases of great injury, where 
courts of law cannot afford an adequate or commensurate remedy in damages. 

Every  court  should  remember  that  an  injunction  is  a  limitation  upon  the  freedom  of  action  of  the 
[complainant] and should not be granted lightly or precipitately. It should be granted only when the court is fully 
satisfied that the law permits it and the emergency demands it. 

Given this Court's findings in the earlier issues of the instant case, we find no compelling reason to grant the injunctive relief sought 

by petitioner.

WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision as well as the February 5, 2004 Resolution of the 

Court of Appeals in CA‐G.R. SP No. 67657 are AFFIRMED. Costs against petitioner.

 
SO ORDERED.

MARIANO C. DEL CASTILLO 

Associate Justice 

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

RENATO C. CORONA ARTURO D. BRION

Associate Justice Associate Justice

JOSE P. PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the

opinion of the Court's Division.

 ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's attestation, it is hereby certified that the

conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the

Courts Division.

REYNATO S. PUNO

Chief Justice
 


In lieu of Associate Justice Roberto A. Abad who is on leave per Special Order No. 812 dated January 4, 2010.
[1]
The Petition for Review on Certiorari under Rule 45 filed before the Court erroneously included Judge Arturo G. Tayag among its public
respondents. We have deleted his name in the case title in accordance with Section 4 (a), Rule 45 of the Rules of Court, which reads:
Sec. 4 Contents of petition. -- The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being
indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as
respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; x x x (Emphasis supplied)
[2]
Director, Officer, Stockholder and Related Interest.
[3]
The General Banking Act.
[4]
Rollo, pp. 10-23.
[5]
Id. at 25-36; penned by Associate Justice Arsenio J. Magpale and concurred in by Associate Justices Conrado M. Vasquez, Jr. and Bienvenido L.
Reyes.
[6]
Id. at 38-39.
[7]
Id. at 36.
[8]
Bank Attorney III Jose R. Fajardo, Deputy Director Alfonso C. Peaco IV, and Director Vicente S. Aquino. CA rollo, p. 36.
[9]
Id. at 34-36.
[10]
Id. at 288-328.
[11]
Increasing the Penalty for Certain Forms of Swindling or Estafa.
[12]
Amending Further Republic Act No. 337, As Amended, Otherwise Known as the General Banking Act.
[13]
CA rollo, pp. 38-39.
[14]
Id. at 21-23.
[15]
Id.
[16]
Id. at 21-22.
[17]
Id. at 24-26.
[18]
Id.
[19]
Id. at 24-25.
[20]
Presided by Hon. Arturo G. Tayag but subsequently raffled off to Branch 17, Regional Trial Court, Malolos, Bulacan, presided by
Judge Ma. Theresa V. Mendoza- Arcega, rollo, p. 838.
[21]
CA rollo, pp. 27-33.
[22]
Id. at 28-29.
[23]
 Sec. 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or as the representative or 
agent of others, borrow any of the deposits of funds of such bank, nor shall he become a guarantor, indorser, or surety for loans 
from such bank to others, or in any manner be an obligor for moneys borrowed from the bank or loaned by it, except with the written 
 approval  of  the  majority  of  the  directors  of  the  bank,  excluding  the  director  concerned. Any  such  approval  shall  be entered  upon  the 
records of the corporation and a copy of such entry shall be transmitted forthwith to the Superintendent of Banks. The office of 
any director or officer of a bank who violates the provisions of this section shall immediately become vacant and the director or 
officer shall be punished by imprisonment of not less than one year nor more than ten years and by a fine of nopan> CA rollo, pp. 
30‐31. 
[26]
Id. at 17-19.
[27]
Id. at 18-19.
[28]
Id. at 20.
[29]
Id. at 2-16.
[30]
Rollo, pp. 30-31.
[31]
Id. at 31-32.
[32]
Id. at 35.
[33]
CA rollo, pp. 363-372.
[34]
Rollo, p. 855.
[35]
Id. at 887.
[36]
Id. at 880-886.
[37]
G.R. No. 163400, March 31, 2006, 486 SCRA 431.
[38]
Rollo, pp. 881-883.
[39]
Supra note 36.
[40]
Ting v. Velez-Ting, G.R. No. 166562, March 31, 2009, 582 SCRA 694.
[41]
G.R. No. 175057, January 29, 2008, 543 SCRA 70.
[42]
Id. at 84-85.
[43]
CA rollo, pp. 30-31.
[44]
Soriano v. People, G.R. Nos. 159517-18, June 30, 2009, 591 SCRA 244, 257-258, citing Caballero v. Sandiganbayan, G.R. Nos. 137355-58,
September 25, 2007, 534 SCRA 30, 43 and Torres v. Hon. Garchitorena, 442 Phil. 765, 777 (2002).
[45]
Id. at 257.
[46]
Rollo, p. 864.
[47]
FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS 838 (perm. ed., 1986 rev. vol.) states that:
At common law, and by the modern current of authority in this country, and in England, the directors of a private corporation, while not
regarded as trustees in the strict, technical sense, are considered in equity as bearing a fiduciary relation to the corporation and its
stockholders. In other words, it is universally recognized that courts of equity treat the relationship of director and stockholders as a
trusteeship, in order to determine the rights, duties and liabilities of the directors; x x x Moreover, these rules should be applied even
more stringently to an officer and director of a bank who should be concerned with the welfare of depositors as well as that of
customers and stockholders. The law demands the fullest disclosure and fair dealing by a director or officer in his relations with a
bank. Thus, in the discharge of his high trust the law holds a bank president to standards of probity and fidelity more lofty than those
of the market place. These high standards this court is not disposed to whittle down. (Citations omitted and emphasis added)
[48]
Go v. Bangko Sentral ng Pilipinas, G.R. No. 178429, October 23, 2009.
[49]
Id.
[50]
10 Am Jur 2d, Banks, Section 239.
[51]
People v. Knapp, 206 NY 373, a case cited in Go v. Bangko Sentral ng Pilipinas, supra.
[52]
People v. Concepcion, 44 Phil. 126 (1922).
[53]
CA rollo, pp. 24-25.
[54]
In Go v. Bangko Sentral ng Pilipinas, supra note 47, the elements of a DOSRI law violation were enumerated:
1. the offender is a director or officer of any banking institution;
2. the offender, either directly or indirectly, for himself or as representative or agent of another, performs any of the following
acts:
a. he borrows any of the deposits or funds of such bank; or
b. he becomes a guarantor, indorser, or surety for loans from such bank to others, or
c. he becomes in any manner an obligor for money borrowed from bank or loaned by it;
3. the offender has performed any of such acts without the written approval of the majority of the directors of the bank, excluding
the offender, as the director concerned.
[55]
d=ftn57>
[56]
Id. at 261.
[57]
Boncodin v. National Power Corporation Employees Consolidated Union (NECU), G.R. No. 162716, September 27, 2006, 503 SCRA 611, 622-
623.
[58]
F. REGALADO, REMEDIAL LAW COMPENDIUM, Vol. I, p. 639 (7th revised ed., 1999).
[59]
274 Phil. 66, 75-76 (1991).
 

 
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80762 March 19, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES, JR.,
NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant.

SARMIENTO, J.:

In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal Case
No. 13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales,
Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except Rogelio Lanida
who eluded arrest and up to now has remain at large and not yet arrained, guilty beyond reasonable doubt of
the crime of murder as defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer
the penalty of imprisonment of twelve (12) years and one (1) day to seventeen (17) years and four (4) months
of reclusion temporal, to indemnify the heirs of the deceased victim in the amount of P40,000.00, plus moral
damages in the sum of P14,000.00 and to pay the costs." 2 The victim was Lloyd Peñacerrada, 44, landowner,
and a resident of Barangay Aspera, Sara, Iloilo.

Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the trial
court's decision. During the pendency of their appeal and before judgment thereon could be rendered by the
Court of Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew their appeal
and chose instead to pursue their respective applications for parole before the then Ministry, now Department,
of Justice, Parole Division. 3

On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It
modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to
indemnify the heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision of the
trial court was affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified
this case to us for review. 6

The antecedent facts are as follows:

At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of Barangay
Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales. Augusto
informed Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and thus would like to surrender to
the authorities. Seeing Augusto still holding the knife allegedly used in the killing and Fausta with her dress
smeared with blood, Paja immediately ordered a nephew of his to take the spouses to the police authorities at
the Municipal Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales spouses, who
"backrode" on his motorcycle, to the municipal building. 7 Upon reaching the Ajuy Police sub-station, the
couple informed the police on duty of the incident. That same night, Patrolman Salvador Centeno of the Ajuy
Police Force and the Gonzales spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group
went to Paja's residence where Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto
proceeded to the latter's residence at Sitio Nabitasan where the killing incident allegedly occurred. 8 There they
saw the lifeless body of Lloyd Peñacerrada, clad only in an underwear, sprawled face down inside the
bedroom. 9 The group stayed for about an hour during which time Patrolman Centeno inspected the scene and
started to make a rough sketch thereof and the immediate surroundings. 10 The next day, February 22, 1981,
at around 7:00 o'clock in the morning, Patrolman Centeno, accompanied by a photographer, went back to the
scene of the killing to conduct further investigations. Fausta Gonzales, on the other hand, was brought back
that same day by Barangay Captain Paja to the police substation in Ajuy. When Patrolman Centeno and his
companion arrived at Sitio Nabitasan, two members of the 321st P.C. Company stationed in Sara, Iloilo, who
had likewise been informed of the incident, were already there conducting their own investigation. Patrolman
Centeno continued with his sketch; photographs of the scene were likewise taken. The body of the victim was
then brought to the Municipal Hall of Ajuy for autopsy.

The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981; after
completed, a report was made with the following findings:

PHYSICAL FINDINGS

1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on cadaveric rigidity.

EXTERNAL FINDINGS

1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior aspect of
the arm, right, directed upward to the right axillary pit.

2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior aspect with an
entrance of 5 cm. in width and 9 cm. in length with an exit at the middle 3rd, posterior aspect of
the forearm, right, with 1 cm. wound exit.

3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the forearm right, 1
cm. in width.

4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum, 6th and
7th ribs, right located 1.5 inches below the right nipple.

5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic cavity right,
located at the left midclavicular line at the level of the 5th rib left.

6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic cavity, located
at the mid left scapular line at the level of the 8th intercostal space.

7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed toward the left
thoracic cavity.

8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid muscle,
located at the upper 3rd axilla left.

9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect, proximal 3rd
arm left, directed downward.

10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect, palm right.

11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large intestine and
mysentery coming out.

12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right, directed
downward to the aspex of the light thoracic cavity.

13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of the medial
border of the right scapula.
 14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of the right
elbow.

15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion, middle 3rd,
forearm, right.

16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull.

INTERNAL FINDINGS:

1. Stab wound No. 5, injuring the left ventricle of the heart.

2. Stab wound No. 6, severely injuring the right lower lobe of the lungs.

3. Stab wound No. 7, injuring the right middle lobe of the lungs.

4. Stab wound No. 11, injuring the descending colon of the large intestine, thru
and thru.

5. Stab wound No. 12, severely injuring the apex of the right lungs (sic).

CAUSE OF DEATH:

MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED,

STABBED (sic), INCISED AND PUNCTURED WOUNDS.

JESUS D. ROJAS, M.D.

Rural Health Physician
Ajuy, Iloilo 11

The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal because
they penetrated the internal organs, heart, lungs and intestines of the deceased." 12

On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in the
poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and protective
custody for "having been involved" in the killing of Lloyd Peñacerrada. He requested that he be taken to the
P.C. headquarters in Sara, Iloilo where his wife, Fausta, was already detained having been indorsed thereat by
the Ajuy police force. 13

Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C.
Company, an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo against
the spouses Augusto and Fausta Gonzales. The information read as follows:

The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO GONZALES
of the crime of MURDER committed as follows:

That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Court, the above-named accused with four other
companions whose identities are still unknown and are still at large, armed with sharp-pointed
and deadly weapons, conspiring, confederating and helping each other, with treachery and
evident premeditation, with deliberate intent and decided purpose to kill, and taking advantage
of their superior strength and number, did then and there wilfully, unlawfully and feloniously
attack, assault, stab, hack, hit and wound Lloyd D. Peñacerrada, with the weapons with which
said accused were provided at the time, thereby inflicting upon said Lloyd D. Peñacerrada
multiple wounds on different parts of his body as shown by autopsy report attached to the
 record of this case which multifarious wounds caused the immediate death of said Lloyd D.
Peñacerrada.

CONTRARY TO LAW.

Iloilo City, August 26, 1981. 14

When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial,
however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada, presented himself
to Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the prosecution. A
reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an
Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio Gonzales, Sr. (the
herein appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the
accused except as earlier explained, Lanida, pleaded not guilty to the crime.

At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted the
autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman
Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt.
Reynaldo Palomo of the 321st P.C. Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the
widow.

Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at
around 11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings revealed
that the victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab wounds, four
(4) incised wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility
that only one weapon might have caused all the wounds (except the lacerated wound) inflicted on the victim,
nevertheless opined that due to the number and different characteristics of the wounds, the probability that at
least two instruments were used is high. 18 The police authorities and the P.C. operatives for their part testified
on the aspect of the investigation they respectively conducted in relation to the incident. Nanie Peñacerrada
testified mainly on the expenses she incurred by reason of the death of her husband while Barangay Captain
Bartolome Paja related the events surrounding the surrender of the spouses Augusto and Fausta Gonzales to
him, the location of the houses of the accused, as well as on other matters.

By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident.
According to Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the
afternoon on February 21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was employed as
a tractor driver by one Mr. Piccio, and walked home; 20 he took a short-cut route. 21 While passing at the vicinity
of the Gonzales spouses' house at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity
prompted him to approach the place where the shouts were emanating. When he was some 15 to 20 meters
away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing
and hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he clearly
recognized all the accused as the place was then awash in moonlight. 24 Huntoria further recounted that after
the accused were through in stabbing and hacking the victim, they then lifted his body and carried it into the
house of the Gonzales spouses which was situated some 20 to 25 meters away from the "linasan". 25 Huntoria
then proceeded on his way home. Upon reaching his house, he related what he saw to his mother and to his
wife 26 before he went to sleep. 27 Huntoria explained that he did not immediately report to the police authorities
what he witnessed for fear of his life. 28 In October 1981 however, eight months after the extraordinary incident
he allegedly witnessed, bothered by his conscience plus the fact that his father was formerly a tenant of the
victim which, to his mind, made him likewise a tenant of the latter, he thought of helping the victim's widow,
Nanie Peñacerrada. Hence, out of his volition, he travelled from his place at Sitio Nabitasan, in Barangay
Tipacla Municipality of Ajuy, to Sara, Iloilo where Mrs. Peñacerrada lived, and related to her what he saw on
February 21, 1981. 29

Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased attempted to
rape her, all the accused denied participation in the crime. The herein accused-appellant, Custodio Gonzales,
Sr., claimed that he was asleep 30 in his house which was located some one kilometer away from the scene of
the crime 31when the incident happened. He asserted that he only came to know of it after his grandchildren by
Augusto and Fausta Gonzales went to his house that night of February 21, 1981 to inform him. 32

The trial court disregarded the version of the defense; it believed the testimony of Huntoria.

On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court
erred in convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not
appreciating his defense of alibi.

The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the appellate
court held that:

. . . Huntoria positively identified all the accused, including the herein accused-appellant, as the
assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim that Huntoria would have
difficulty recognizing the assailant at a distance of 15 to 20 meters is without merit, considering
that Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not say who was hacking
and who was stabbing the deceased, it was only because the assailant were moving around the
victim.

As for the delay in reporting the incident to the authorities, we think that Huntoria's explanation
is satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As stated in People vs. Realon,
99 SCRA 442, 450 (1980): "The natural reticence of most people to get involved in a criminal
case is of judicial notice. As held in People v. Delfin, '. . . the initial reluctance of witnesses in
this country to volunteer information about a criminal case and their unwillingness to be involved
in or dragged into criminal investigations is common, and has been judicially declared not to
affect credibility.'"

It is noteworthy that the accused-appellant self admitted that he had known Huntoria for about
10 years and that he and Huntoria were in good terms and had no misunderstanding
whatsoever. (TSN, p. 33, July 18, 1984) He said that he could not think of any reason why
Huntoria should implicate him. (Id., p. 34) Thus, Huntoria's credibility. is beyond question. 33

The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however, found
the sentence imposed by the trial court on the accused-appellant erroneous. Said the appellate court:

Finally, we find that the trial court erroneously sentenced the accused-appellant to 12 years and
1 day to 17 years and 4 months of reclusion temporal. The penalty for murder under Article 248
isreclusion temporal in its maximum period to death. As there was no mitigating or aggravating
circumstance, the imposible penalty should be reclusion perpetua. Consequently, the appeal
should have been brought to the Supreme Court. With regard to the indemnity for death, the
award of P40,000.00 should be reduced to P30,000.00, in accordance with the rulings of the
Supreme Court. (E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128
SCRA 31 (1984); People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731,
Feb. 27, 1987). 35

The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty
imposed being reclusion perpetua.

After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict the
appellant of the crime charged.

To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman
Centeno of the Ajuy police force in his sworn statements 36 even gave the date of the commission of the crime
as "March 21, 1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated thereon are
the alleged various blood stains and their locations relative to the scene of the crime, there was however no
indication as to their quantity. This is rather unfortunate for the prosecution because, considering that there are
two versions proferred on where the killing was carried out, the extent of blood stains found would have
provided a more definite clue as to which version is more credible. If, as the version of the defense puts it, the
killing transpired inside the bedroom of the Gonzales spouses, there would have been more blood stains inside
the couple's bedroom or even on the ground directly under it. And this circumstance would provide an
additional mooring to the claim of attempted rape asseverated by Fausta. On the other hand, if the
prosecution's version that the killing was committed in the field near the linasan is the truth, then blood stains in
that place would have been more than in any other place.

The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal Ben
Sazon who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to state
clearly the reason for the "surrender." It would even appear that Augusto "surrendered" just so he could be
safe from possible revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto never
mentioned to him the participation of other persons in the killing of the victim. Finally, without any evidence on
that point, P.C. investigators of the 321st P.C. Company who likewise conducted an investigation of the killing
mentioned in their criminal complaint 38 four other unnamed persons, aside from the spouses Augusto and
Fausta Gonzales, to have conspired in killing Lloyd Peñacerrada.

Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the
autopsy report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility that
one bladed instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy report are
concerned, Fausta Gonzales' admission that she alone was responsible for the killing appears not at all too
impossible. And then there is the positive testimony of Dr. Rojas that there were only five wounds that could be
fatal out of the sixteen described in the autopsy report. We shall discuss more the significance of these wounds
later.

It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be sustained, it
can only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence, a meticulous
scrutiny of Huntoria's testimony is compelling.

To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in hacking
and stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the field near a
"linasan" while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20 meters away
from where the crime was being committed. According to him, he recognized the six accused as the
malefactors because the scene was then illuminated by the moon. He further stated that the stabbing and
hacking took about an hour. But on cross-examination, Huntoria admitted that he could not determine who
among the six accused did the stabbing and/or hacking and what particular weapon was used by each of them.

ATTY. GATON (defense counsel on cross-examination):

Q And you said that the moon was bright, is it correct?

A Yes, Sir.

Q And you would like us to understand that you saw the hacking and the
stabbing, at that distance by the herein accused as identified by you?

A Yes, sir, because the moon was brightly shining.

Q If you saw the stabbing and the hacking, will you please tell this Honorable
Court who was hacking the victim?

A Because they were surrounding Peñacerrada and were in constant movement,

I could not determine who did the hacking.
 ATTY. GATON:

The interpretation is not clear.

COURT:

They were doing it rapidly.

A The moving around or the hacking or the "labu" or "bunu" is rapid. I only saw
the rapid movement of their arms, Your Honor, and I cannot determine who was
hacking and who was stabbing. But I saw the hacking and the stabbing blow.

ATTY. GATON:

Q You cannot positively identify before this Court who really hacked Lloyd
Peñacerrada?

A Yes sir, I cannot positively tell who did the hacking.

Q And likewise you cannot positively tell this Honorable Court who did the
stabbing?

A Yes sir, and because of the rapid movements.

Q I noticed in your direct testimony that you could not even identify the weapons
used because according to you it was just flashing?

A Yes, sir. 39

(Emphasis supplied)

From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed, by the
appellant in the killing of Lloyd Peñacerrada.

It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals which
would categorize the criminal liability of the appellant as a principal by direct participation under Article 17,
paragraph 1 of the Revised Penal Code. Likewise, there is nothing in the evidence for the prosecution that
inculpates him by inducement, under paragraph 2 of the same Article 17, or by indispensable cooperation
under paragraph 3 thereof. What then was the direct part in the killing did the appellant perform to support the
ultimate punishment imposed by the Court of Appeals on him?

Article 4 of the Revised Penal Code provides how criminal liability is incurred.

Art. 4. Criminal liability — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from
that which he intended.

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.

(Emphasis supplied.)
Thus, one of the means by which criminal liability is incurred is through the commission of a felony. Article 3 of
the Revised Penal Code, on the other hand, provides how felonies are committed.

Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa).

There is deceit when the act is performed with deliberate intent; and there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

(Emphasis supplied.)

Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission
must be punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by
means of deceit or fault.

Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed a
felony in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what act was performed by
the appellant. It has been said that "act," as used in Article 3 of the Revised Penal Code, must be understood
as "any bodily movement tending to produce some effect in the external world." 40 In this instance, there must
therefore be shown an "act" committed by the appellant which would have inflicted any harm to the body of the
victim that produced his death.

Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or who
"hacked" the victim. Thus this principal witness did not say, because he could not whether the appellant
"hacked or "stabbed" victim. In fact, Huntoria does not know what specific act was performed by the appellant.
This lack of specificity then makes the case fall short of the test laid down by Article 3 of the Revised Penal
Code previously discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the
total of sixteen inflicted, as adverted to above, while there are six accused charged as principals, it follows to
reason that one of the six accused could not have caused or dealt a fatal wound. And this one could as well be
the appellant, granted ex gratia argumenti that he took part in the hacking and stabbing alleged by Huntoria.
And why not him? Is he not after all the oldest (already sexagenarian at that time) and practically the father of
the five accused? And pursuing this argument to the limits of its logic, it is possible, nay even probable, that
only four, or three, or two of the accused could have inflicted all the five fatal wounds to the exclusion of two,
three, or four of them. And stretching the logic further, it is possible, nay probable, that all the fatal wounds,
including even all the non-fatal wounds, could have been dealt by Fausta in rage against the assault on her
womanhood and honor. But more importantly, there being not an iota of evidence that the appellant caused
any of the said five fatal wounds, coupled with the prosecution's failure to prove the presence of conspiracy
beyond reasonable doubt, the appellant's conviction can not be sustained.

Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify
in October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily
the failure of a witness to report at once to the police authorities the crime he
had witnessed should not be taken against him and should not affect his credibility, 41 here, the unreasonable
delay in Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming out an alleged
eyewitness for several weeks renders his credibility doubtful, 43 the more it should be for one who was mute for
eight months. Further, Huntoria's long delay in reveiling what he allegedly witnessed, has not been
satisfactorily explained. His lame excuse that he feared his life would be endangered is too pat to be believed.
There is no showing that he was threatened by the accused or by anybody. And if it were true that he feared a
possible retaliation from the accused, 44 why did he finally volunteer to testify considering that except for the
spouses Augusto and Fausta Gonzales who were already under police custody, the rest of the accused were
then still free and around; they were not yet named in the original information, 45 thus the supposed danger on
Huntoria's life would still be clear and present when he testified.
Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that he
was a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was because
the victim was also his landlord.

xxx xxx xxx

Q Now, Mr. Huntoria, why did it take you so long from the time you saw the
stabbing and hacking of Lloyd Peñacerrada when you told Mrs. Peñacerrada
about what happened to her husband?

A At first I was then afraid to tell anybody else but because I was haunted by my
conscience and secondly the victim was also my landlord I revealed what I saw
to the wife of the victim. 46

xxx xxx xxx

(Emphasis ours.)

At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very
source of his livelihood, if not existence itself, from his landlord who provides him with the land to till. In this
milieu, tenants like Huntoria are naturally beholden to their landlords and seek ways and means to ingratiate
themselves with the latter. In this instance, volunteering his services as a purported eyewitness and providing
that material testimony which would lead to the conviction of the entire family of Augusto Gonzales whose wife,
Fausta, has confessed to the killing of Lloyd Peñacerrada, would, in a perverted sense, be a way by which
Huntoria sought to ingratiate himself with the surviving family of his deceased landlord. This is especially so
because the need to get into the good graces of his landlord's family assumed a greater urgency considering
that he ceased to be employed as early as May 1981. 47 Volunteering his services would alleviate the financial
distress he was in. And Huntoria proved quite sagacious in his choice of action for shortly after he volunteered
and presented himself to the victim's widow, he was taken under the protective wings of the victim's uncle, one
Dr. Biclar, who gave him employment and provided lodging for his family. 48 Given all the foregoing
circumstances, we can not help but dismiss Huntoria as an unreliable witness, to say the least.

At any rate, there is another reason why we find the alleged participation of the appellant in the killing of Lloyd
Peñacerrada doubtful — it is contrary to our customs and traditions. Under the Filipino family tradition and
culture, aging parents are sheltered and insulated by their adult children from any possible physical and
emotional harm. It is therefore improbable for the other accused who are much younger and at the prime of
their manhood, to summon the aid or allow the participation of their 65-year old 49 father, the appellant, in the
killing of their lone adversary, granting that the victim was indeed an adversary. And considering that the
appellant's residence was about one kilometer from the scene of the crime, 50 we seriously doubt that the
appellant went there just for the purpose of aiding his three robust male sons (Custodia Jr., Nerio, and
Augusta), not to mention the brother and sister, Rogelio and Fausta, in the killing of Lloyd Peñacerrada, even if
the latter were a perceived enemy.

Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in
which the participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts should
not at once look with disfavor at the defense of alibi for if taken in the light of the other evidence on record, it
may be sufficient to acquit the accused. 52

In fine, the guilt of the appellant has not been proven beyond reasonable doubt.

WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is
hereby ACQUITTED. Costs de oficio.

SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Footnotes

1 Rendered by Judge Constancio E. Jaugan.

2 Decision of the Regional Trial Court, 9.

3 Rollo, 54 and 67.

4 Mendoza, Vicente V., J., ponente; Herrera, Manuel C. and Imperial, Jorge S., JJ., concurring.

5 No. L-49818, February 20, 1979, 88 SCRA 486; see also People vs. Galang, G.R. No. 70713, June 29,
1989; People vs. Centeno, L-48744, October 30, 1981, 108 SCRA 710; and People vs. Daniel, No. L-40330,
November 20, 1978, 86 SCRA 511.

6 Rollo, id., 114.

7 T.S.N., session of June 6, 1983. 5-9.

8 Id., Session of May 10, 1983, 34-35.

9 Original Records, 149.

10 T.S.N., Id., session of July 27, 1982, 11.

11 Autopsy Report, Original Records, id., 2-3.

12 Decision of the Regional Trial Court, id., 3.

13 T.S.N., id., session of July 27, 1982, 17-19.

14 Original Records, id., 32.

15 Interchangeably mentioned in the Records of the case as Jose Juntoria, Jose Hontoria, and Jose Huntoria.

16 Original Records, Id., 81-82.

17 T.S.N., session of June 16, 1982, 3.

18 Id., 24.

19 Id., session of July 27, 1982, 37; see also T.S.N., of the Reinvestigation, session of January 8, 1982, at 2,
Original Records, at 187, where Huntoria gave his age as 29 years old.

20 Id., session of July 27, 1982, 41.

21 Id., 55. 22 Id., 41. 23 Id., 44, 56-57. 24 Id., 45. 25 Id. 26 Id., 48, 63. 27 Id., 64. 28 Id., 51. 29 Id., 52, 66.

30 Id., session of July 18, 1984, 12.

31 Id., 6. 32 Id., 14-15. 33 Rollo, id., 112. 34 Id., 113. 35 Id., 113-114.
36 Original Records, id., 7, 14-16.

37 Id., 4-5. 38 Id., 1.

39 T.S.N., session on July 27, 1982, 57-59.

40 REYES, THE REVISED PENAL CODE (1977), vol. 1, 68-69.

41 People vs. Punzalan, No. 54562, August 6, 1987, 153 SCRA 1; People vs. Coronado, No. 68932, October
28, 1986, 145 SCRA 250.

42 People vs. Delavin, Nos. 73762-63 February 27,1987, 148 SCRA 257, citing People vs. Madarang, No. L-
22295, January 30, 1970, 31 SCRA 148.

43 People vs. Tulagan, No. 68620, July 22, 1986, 143 SCRA 107.

44 T.S.N., session of July 27, 1982, 50-51.

45 Original Records, id., 32-33.

46 T.S.N., session of July 27, 1982, id., 51-52.

47 Id., 67.

48 Id., 67-68.

49 The appellant was already 68 years old on July 18, 1984; T.S.N., session of July 18, 1984, 3.

50 T.S.N., id., 6.

51 People vs. Arnel Mitra, et al., No. 80405, November 24, 1989; People vs. Berbal and Juanito, No. 71527,
August 10, 1989; People vs. Nolasco, No. 55483, July 28, 1988, 163 SCRA 623; People vs. Pecato, No. L-
41008, June 18, 1987, 151 SCRA 14.

52 People vs. Santos, No. 62072, November 11, 1985, 139 SCRA 583.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-64750 January 30, 1984

ATTY. SELSO M. MANZANARIS, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HONORABLE SANDIGANBAYAN, respondents.

Benjamin C. Almonte for petitioner.

The Solicitor General for respondents.

ESCOLIN, J.:

This is a petition for review of the decision of the Sandiganbayan finding petitioner Selso M. Manzanaris guilty
of infidelity in the custody of documents under Article 226, paragraph 2 of the Revised Penal Code. The
dispositive portion of the decision reads:

WHEREFORE, the Court finds Selso M. Manzanaris guilty beyond reasonable doubt as
principal of Violation of Art. 226, Revised Penal Code (Removal, Concealment or Destruction of
Documents), defined and penalized under paragraph 2 thereof, and there being no. mitigating
nor aggravating circumstances, he is hereby sentenced to an indeterminate penalty of Three (3)
Months and Eleven (11) Days of arresto mayor, as minimum, to One (1) Year, Eight (8) Months
and Twenty-One (21) Days of prision correccional as maximum; to pay a fine of Five Hundred
(P500.00) Pesos, with subsidiary imprisonment in case of insolvency; to suffer the additional
penalty of Eleven (11) Years and One (1) Day of temporary special disqualification; and to pay
the costs.

The facts upon which the judgment of conviction rests are summarized by the respondent court as follows:

... Accused is the Clerk of Court of the Court of First Instance of Basilan since 1963 up to the
present. As such, he is the custodian of all the records of the Court of First Instance of Basilan.
Among the cases filed in said court was Criminal Case No. 299, against Geronimo Borja for
malversation of public funds. Among the property constituting the property bond filed by said
accused was that covered by Certificate of Title No. 877 of the Register of Deeds of Basilan.
When accused discovered thru his subordinate that Original Certificate of Title No. 877 was not
existing in the Register of Deeds of Basilan he ordered a subordinate to deliver owner's copy of
Certificate of Title No. 877 to Mr. Borja for the purpose of administrative reconstitution thereof.

xxx xxx xxx

Borja was asked to sign a receipt for the title. The contents of the receipt stated "Received from
the Clerk of Court Selso M. Manzanaris. OCT No. 877 to be reconstituted in the Register of
Deeds ... . After reconstitution to be returned to the court."

xxx xxx xxx

The release and delivery of the owner's certificate of title to Geronimo Borja was done without
any written order from the presiding judge of the court. Mrs. Trinidad M. Borja, wife of Geronimo
 Borja filed a petition with the Office of the Register of Deeds for the administrative reconstitution
of Original Certificate of Title No. 877. Although she succeeded in reconstituting the original of
said title in November, 1974, Certificate of Title No. 877 was not turned over to the court.

The records further reveal that on June 11, 1975 the building housing the Court of First Instance of Basilan
including all the records and documents of the court, were burned. Sometime in 1981, one Atty. Filoteo Jo filed
a motion with the court to borrow OCT No. 877. This motion was denied on the basis of the certification issued
by petitioner that said title was among the documents destroyed during the conflagration of 1975.

Atty. Jo later informed petitioner that Trinidad Borja had obtained possession of the said title and in fact had
succeeded in having the same reconstituted. Only then did petitioner remember that he had delivered said title
to Geronimo Borja and that the latter had issued a receipt therefor. Since then, petitioner had repeatedly asked
Mrs. Trinidad Borja to return the reconstituted title to the court. The latter, however, could not locate the same
from the files of her deceased mother, the registered owner, who was in custody thereof before her death.

Petitioner admitted having removed OCT No. 877 from the custody of the court and having delivered the same
to Geronimo Borja for the latter to cause its administrative reconstitution after he had found out that the original
of said title in the Office of the Register of Deeds was missing. He professed, however, that in delivering OCT
No. 877 to Borja, he was actuated with a lawful and commendable motive, i.e., to protect the interest of the
State, since the unreconstituted certificate of title, given as property bond of the accused Borja, was absolutely
inefficacious for such purpose.

The respondent court brushed aside petitioner's defense of good faith, notwithstanding complete lack of
evidence to the contrary.

We reverse. To warrant a finding of guilt of the crime of infidelity in the custody of documents, the act of
removal as a mode of committing the offense, should be coupled with criminal intent or illicit purpose. This calls
to mind the oft-repeated maxim "Actus non facit, nisi mens sit rea," which expounds a basic principle in
criminal law that a crime is not committed if the mind of the person performing the act complained of be
innocent. Thus, to constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent. It is true that a presumption of criminal intent may arise from proof of the
commission of a criminal act; and the general rule is that if it is proved that the accused committed the criminal
act charged, it will be presumed that the act was done with criminal intention and that it is for the accused to
rebut this presumption. But it must be borne in mind that the act from which such presumption springs must be
a criminal act. 1 In the case at bar, the act is not criminal. Neither can it be categorized as malum
prohibitum the mere commission of which makes the doer criminally liable even if he acted without evil intent.

It is quite clear that in removing the certificate of title in question from the court's files and delivering the same
to Borja for the purpose of effecting its administrative reconstitution, petitioner was not prompted by criminal
intent or illegal purpose. Rather, he was motivated with a sincere desire to protect the interest of the
Government. The prosecution did not even attempt to impute bad faith on the part of petitioner, and there is
nothing in the record to insinuate that petitioner had profited from the act complained of.

In Kataniag vs. People, 2 this Court ruled:

Whether during or after office hours, if the removal by a public officer of any official document
from its usual place of safe-keeping is for an illicit purpose, such as to tamper with or to
otherwise profit by it, or to do in connection therewith an act which would constitute a breach of
trust in his official care thereof, the crime of infidelity in the custody of public documents is
committed. On the other hand, where the act of removal is actuated with lawful or commendable
motives, as when the public officer removes the public documents committed to his trust for
examination in connection with official duty, or with a view to securing them from imminent
danger of loss, there would be no crime committed under the law. This is so, because the act of
removal destruction or concealment of public documents is punished by law only when any of
such acts would constitute infidelity in the custody thereof.
Tested by this rule, petitioner cannot be punished criminally.

WHEREFORE, the decision of the Sandiganbayan is hereby set aside and petitioner acquitted of the crime
charged. Costs de oficio.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-
Herrera, Plana, Relova and Gutierrez, Jr., JJ., concur.

Footnotes

1 U.S. vs. Catolico, 18 Phil. 504.

2 74 Phil. 45.

 
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 152133 February 9, 2006

ROLLIE CALIMUTAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, ET AL., Respondents.

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Rollie
Calimutan prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29
August 2001,1affirming the Decision of the Regional Trial Court (RTC), Branch 46, of Masbate, Masbate, in
Criminal Case No. 8184, dated 19 November 1998,2 finding petitioner Calimutan guilty beyond reasonable
doubt of the crime of homicide under Article 249 of the Revised Penal Code.

The Information3 filed with the RTC charged petitioner Calimutan with the crime of homicide, allegedly
committed as follows –

That on or about February 4, 1996, in the morning thereof, at sitio Capsay, Barangay Panique, Municipality of
Aroroy, Province of Masbate, Philippines within the jurisdiction of this Honorable Court, the above-named
accused with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and throw a
stone at PHILIP CANTRE, hitting him at the back left portion of his body, resulting in laceration of spleen due
to impact which caused his death a day after.

CONTRARY TO LAW.

Masbate, Masbate, September 11, 1996.

Accordingly, the RTC issued, on 02 December 1996, a warrant4 for the arrest of petitioner Calimutan. On 09
January 1997, however, he was provisionally released5 after posting sufficient bailbond.6 During the
arraignment on 21 May 1997, petitioner Calimutan pleaded not guilty to the crime of homicide charged against
him.7

In the course of the trial, the prosecution presented three witnesses, namely: (1) Dr. Ronaldo B. Mendez, a
Senior Medico-Legal Officer of the National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother of the
victim, Philip Cantre; and (3) Rene L. Sañano, companion of the victim Cantre when the alleged crime took
place. Their testimonies are collectively summarized below.

On 04 February 1996, at around 10:00 a.m., the victim Cantre and witness Sañano, together with two other
companions, had a drinking spree at a videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the
videoke bar, the victim Cantre and witness Sañano proceeded to go home to their respective houses, but
along the way, they crossed paths with petitioner Calimutan and a certain Michael Bulalacao. Victim Cantre
was harboring a grudge against Bulalacao, suspecting the latter as the culprit responsible for throwing stones
at the Cantre’s house on a previous night. Thus, upon seeing Bulalacao, victim Cantre suddenly punched him.
While Bulalacao ran away, petitioner Calimutan dashed towards the backs of victim Cantre and witness
Sañano. Petitioner Calimutan then picked up a stone, as big as a man’s fist, which he threw at victim Cantre,
hitting him at the left side of his back. When hit by the stone, victim Cantre stopped for a moment and held his
back. Witness Sañano put himself between the victim Cantre and petitioner Calimutan, and attempted to pacify
the two, even convincing petitioner Calimutan to put down another stone he was already holding. He also
urged victim Cantre and petitioner Calimutan to just go home. Witness Sañano accompanied victim Cantre to
the latter’s house, and on the way, victim Cantre complained of the pain in the left side of his back hit by the
stone. They arrived at the Cantre’s house at around 12:00 noon, and witness Sañano left victim Cantre to the
care of the latter’s mother, Belen.8

Victim Cantre immediately told his mother, Belen, of the stoning incident involving petitioner Calimutan. He
again complained of backache and also of stomachache, and was unable to eat. By nighttime, victim Cantre
was alternately feeling cold and then warm. He was sweating profusely and his entire body felt numb. His
family would have wanted to bring him to a doctor but they had no vehicle. At around 3:00 a.m. of the following
day, 05 February 1996, Belen was wiping his son with a piece of cloth, when victim Cantre asked for some
food. He was able to eat a little, but he also later vomited whatever he ate. For the last time, he complained of
backache and stomachache, and shortly thereafter, he died.9

Right after his death, victim Cantre was examined by Dr. Conchita S. Ulanday, the Municipal Health Officer of
Aroroy, Masbate. The Post-Mortem Examination Report10 and Certification of Death,11 issued and signed by Dr.
Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food
poisoning. The body of victim Cantre was subsequently embalmed and buried on 13 February 1996.

Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the help of the Lingkod Bayan-Circulo de
Abogadas of the ABS-CBN Foundation, requested for an exhumation and autopsy of the body of the victim
Cantre by the NBI. The exhumation and autopsy of the body of the victim Cantre was conducted by Dr.
Ronaldo B. Mendez on 15 April 1996,12 after which, he reported the following findings –

Body; fairly well-preserved with sign of partial autopsy; clad in white Barong Tagalog and blue pants placed
inside a wooden golden-brown coffin and buried in a concrete niche.

Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side.

Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line.

Hemoperitoneum, massive, clotte [sic].

Laceration, spleen.

Other visceral organ, pale and embalmed.

Stomach contains small amount of whitish fluid and other partially digested food particles.

xxxx

CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN.

In his testimony before the RTC, Dr. Mendez affirmed the contents of his exhumation and autopsy report. He
explained that the victim Cantre suffered from an internal hemorrhage and there was massive accumulation of
blood in his abdominal cavity due to his lacerated spleen. The laceration of the spleen can be caused by any
blunt instrument, such as a stone. Hence, Dr. Mendez confirmed the possibility that the victim Cantre was
stoned to death by petitioner Calimutan.13

To counter the evidence of the prosecution, the defense presented the sole testimony of the accused, herein
petitioner, Calimutan.

According to petitioner Calimutan, at about 1:00 p.m. on 04 February 1996, he was walking with his house
helper, Michael Bulalacao, on their way to Crossing Capsay, Panique, Aroroy, Masbate, when they met with
the victim Cantre and witness Sañano. The victim Cantre took hold of Bulalacao and punched him several
times. Petitioner Calimutan attempted to pacify the victim Cantre but the latter refused to calm down, pulling
out from his waist an eight-inch Batangas knife and uttering that he was looking for trouble, either "to kill or be
killed." At this point, petitioner Calimutan was about ten meters away from the victim Cantre and was too
frightened to move any closer for fear that the enraged man would turn on him; he still had a family to take care
of. When he saw that the victim Cantre was about to stab Bulalacao, petitioner Calimutan picked up a stone,
which he described as approximately one-inch in diameter, and threw it at the victim Cantre. He was able to hit
the victim Cantre on his right buttock. Petitioner Calimutan and Bulalacao then started to run away, and victim
Cantre chased after them, but witness Sañano was able to pacify the victim Cantre. Petitioner Calimutan
allegedly reported the incident to akagawad of Barangay Panique and to the police authorities and sought their
help in settling the dispute between Bulalacao and the victim Cantre. Bulalacao, meanwhile, refused to seek
medical help despite the advice of petitioner Calimutan and, instead, chose to go back to his hometown.14

Petitioner Calimutan was totally unaware of what had happened to the victim Cantre after the stoning incident
on 04 February 1996. Some of his friends told him that they still saw the victim Cantre drinking at a videoke bar
on the night of 04 February 1996. As far as he knew, the victim Cantre died the following day, on 05 February
1996, because of food poisoning. Petitioner Calimutan maintained that he had no personal grudge against the
victim Cantre previous to the stoning incident.15

On 19 November 1998, the RTC rendered its Decision,16 essentially adopting the prosecution’s account of the
incident on 04 February 1996, and pronouncing that –

It cannot be legally contended that the throwing of the stone by the accused was in defense of his companion,
a stranger, because after the boxing Michael was able to run. While it appears that the victim was the unlawful
aggressor at the beginning, but the aggression already ceased after Michael was able to run and there was no
more need for throwing a stone. The throwing of the stone to the victim which was a retaliatory act can be
considered unlawful, hence the accused can be held criminally liable under paragraph 1 of Art. 4 of the
Revised Penal Code.

The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous one
and the accused committed a felony causing physical injuries to the victim. The physical injury of hematoma as
a result of the impact of the stone resulted in the laceration of the spleen causing the death of the victim. The
accused is criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate
result had not been intended. (Art. 4, Par. 1, Revised Penal Code; People vs. Narciso, CA-G.R. No. 03532-CR,
Jan. 13, 1964)

One is not relieved from criminal liability for the natural consequences of one’s illegal acts merely because one
does not intend to produce such consequences (U.S. vs. Brobst, 14 Phil. 310).

The crime committed is Homicide as defined and penalized under Art. 249 of the Revised Penal Code.

WHEREFORE, the Court finds and so holds that accused ROLLIE CALIMUTAN is GUILTY beyond reasonable
doubt of the crime of Homicide defined and penalized under Art. 249 of the Revised Penal Code with no
mitigating or aggravating circumstance and applying the Indeterminate Sentence Law hereby imposes the
penalty of imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum, to TWELVE (12) YEARS and
ONE (1) DAY of Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of Fifty
Thousand (P50,000.00) Pesos as compensatory damages and the sum of Fifty Thousand (P50,000.00) Pesos
as moral damages, without subsidiary imprisonment in case of insolvency.

Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals. The Court of Appeals, in its
Decision, dated 29 August 2001,17 sustained the conviction of homicide rendered by the RTC against petitioner
Calimutan, ratiocinating thus –

The prosecution has sufficiently established that the serious internal injury sustained by the victim was caused
by the stone thrown at the victim by the accused which, the accused-appellant does not deny. It was likewise
shown that the internal injury sustained by the victim was the result of the impact of the stone that hit the victim.
It resulted to a traumatic injury of the abdomen causing the laceration of the victim’s spleen.

This is clearly shown by the autopsy report prepared by Dr. Ronaldo Mendez, a Senior Medico Legal Officer of
the NBI after the exhumation of the victim’s cadaver…

The Court cannot give credence to the post mortem report prepared by Municipal Health Officer Dr. Conchita
Ulanday stating that the cause of the victim’s death was food poisoning. Dr. Ulanday was not even presented
to testify in court hence she was not even able to identify and/or affirm the contents of her report. She was not
made available for cross-examination on the accuracy and correctness of her findings.

Dr. Conchita Ulanday’s post mortem report cannot prevail over the autopsy report (Exh. "C") of the Medico-
Legal Officer of the NBI who testified and was cross-examined by the defense.

Besides, if accused-appellant was convinced that the victim indeed died of food poisoning, as reported by Dr.
Conchita Ulanday, why did they not present her as their witness to belie the report of the Medico-Legal Officer
of the NBI.

The trial court’s evaluation of the testimony of Dr. Mendez is accorded the highest respect because it had the
opportunity to observe the conduct and demeanor of said witness.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Masbate, Branch 46, finding
accused-appellant guilty beyond reasonable doubt of the crime of homicide is hereby AFFIRMED.

The Court of Appeals, in its Resolution, dated 15 January 2002,18 denied the Motion for Reconsideration filed
by petitioner Calimutan for lack of merit since the issues raised therein had already been passed and ruled
upon in its Decision, dated 29 August 2001.

Comes now petitioner Calimutan, by way of the present Petition for Review on Certiorari, seeking (1) the
reversal of the Decisions of the RTC, dated 19 November 1998, and of the Court of Appeals, dated 29 August
2001, convicting him of the crime of homicide; and, (2) consequently, his acquittal of the said crime based on
reasonable doubt.

Petitioner Calimutan contended that the existence of the two autopsy reports, with dissimilar findings on the
cause of death of the victim Cantre, constituted reasonable doubt as to the liability of petitioner Calimutan for
the said death, arguing that –

x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of Aroroy, Masbate was the first physician of the
government who conducted an examination on the cadaver of the victim Philip Cantre whose findings was that
the cause of his death was due to food poisoning while the second government physician NBI Medico Legal
Officer Dr. Ronaldo Mendez whose findings was that the cause of the death was due to a traumatic injury of
the abdomen caused by a lacerated spleen and with these findings of two (2) government physicians whose
findings are at variance with each other materially, it is humbly contended that the same issue raised a
reasonable doubt on the culpability of the petitioner.

As there are improbabilities and uncertainties of the evidence for the prosecution in the case at bar, it suffices
to reaise [sic] reasonable doubt as to the petitioner’s guilt and therefore, he is entitled to acquittal (People vs.
Delmendo, G.R. No. 32146, November 23, 1981).19

In this jurisdiction, an accused in a criminal case may only be convicted if his or her guilt is established by proof
beyond reasonable doubt. Proof beyond reasonable doubt requires only a moral certainty or that degree of
proof which produces conviction in an unprejudiced mind; it does not demand absolute certainty and the
exclusion of all possibility of error.20
In the Petition at bar, this Court finds that there is proof beyond reasonable doubt to hold petitioner Calimutan
liable for the death of the victim Cantre.

Undoubtedly, the exhumation and autopsy report and the personal testimony before the RTC of prosecution
witness, NBI Senior Medico-Legal Officer Dr. Mendez, are vital pieces of evidence against petitioner Calimutan.
Dr. Mendez determined that the victim Cantre died of internal hemorrhage or bleeding due to the laceration of
his spleen. In his testimony, Dr. Mendez clearly and consistently explained that the spleen could be lacerated
or ruptured when the abdominal area was hit with a blunt object, such as the stone thrown by petitioner
Calimutan at the victim Cantre.

It bears to emphasize that Dr. Mendez was presented by the prosecution as an expert witness, whose
"competency and academic qualification and background" was admitted by the defense itself.21 As a Senior
Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess sufficient knowledge of pathology,
surgery, gynecology, toxicology, and such other branches of medicine germane to the issues involved in a
case.22

Dr. Mendez’s testimony as an expert witness is evidence,23 and although it does not necessarily bind the
courts, both the RTC and the Court of Appeals had properly accorded it great weight and probative value.
Having testified as to matters undeniably within his area of expertise, and having performed a thorough
autopsy on the body of the victim Cantre, his findings as to the cause of death of the victim Cantre are more
than just the mere speculations of an ordinary person. They may sufficiently establish the causal relationship
between the stone thrown by the petitioner Calimutan and the lacerated spleen of the victim Cantre which,
subsequently, resulted in the latter’s death. With no apparent mistake or irregularity, whether in the manner by
which Dr. Mendez performed the autopsy on the body of the victim Cantre or in his findings, then his report and
testimony must be seriously considered by this Court.

Moreover, reference to other resource materials on abdominal injuries would also support the conclusion of Dr.
Mendez that the stone thrown by petitioner Calimutan caused the death of the victim Cantre.

One source explains the nature of abdominal injuries24 in the following manner –

The skin may remain unmarked inspite of extensive internal injuries with bleeding and disruption of the
internal organs. The areas most vulnerable are the point of attachment of internal organs, especially at the
source of its blood supply and at the point where blood vessels change direction.

The area in the middle superior half of the abdomen, forming a triangle bounded by the ribs on the two sides
and a line drawn horizontally through the umbilicus forming its base is vulnerable to trauma applied from
any direction. In this triangle are found several blood vessels changing direction, particularly the celiac trunk,
its branches (the hepatic, splenic and gastric arteries) as well as the accompanying veins. The loop of the
duodenum, the ligament of Treitz and the pancreas are in the retroperitoneal space, and the stomach and
transverse colon are in the triangle, located in the peritoneal cavity. Compression or blow on the area may
cause detachment, laceration, stretch-stress, contusion of the organs (Legal Medicine 1980, Cyril H. Wecht et.,
p. 41).

As to injuries to the spleen, in particular,25 the same source expounds that –

The spleen usually suffers traumatic rupture resulting from the impact of a fall or blow from the crushing and
grinding effects of wheels of motor vehicles. Although the organ is protected at its upper portion by the ribs and
also by the air-containing visceral organs, yet on account of its superficiality and fragility, it is usually
affected by trauma. x x x.

Certainly, there are some terms in the above-quoted paragraphs difficult to comprehend for people without
medical backgrounds. Nevertheless, there are some points that can be plainly derived therefrom: (1) Contrary
to common perception, the abdominal area is more than just the waist area. The entire abdominal area is
divided into different triangles, and the spleen is located in the upper triangle, bounded by the rib cage; (2) The
spleen and all internal organs in the same triangle are vulnerable to trauma from all directions. Therefore, the
stone need not hit the victim Cantre from the front. Even impact from a stone hitting the back of the victim
Cantre, in the area of the afore-mentioned triangle, could rupture the spleen; and (3) Although the spleen had
already been ruptured or lacerated, there may not always be a perceptible external injury to the victim. Injury to
the spleen cannot, at all times, be attributed to an obvious, external injury such as a cut or bruise. The
laceration of the victim Cantre’s spleen can be caused by a stone thrown hard enough, which qualifies as a
nonpenetrating trauma26 –

Nonpenetrating Trauma. The spleen, alone or in combination with other viscera, is the most frequently
injured organ following blunt trauma to the abdomen or the lower thoracic cage. Automobile accidents
provide the predominating cause, while falls, sledding and bicycle injuries, and blows incurred during contact
sports are frequently implicated in children. x x x

The sheer impact of the stone thrown by petitioner Calimutan at the back of the victim Cantre could rupture or
lacerate the spleen – an organ described as vulnerable, superficial, and fragile – even without causing any
other external physical injury. Accordingly, the findings of Dr. Mendez that the victim Cantre died of internal
hemorrhage from his lacerated spleen, and the cause of the laceration of the spleen was the stone thrown by
petitioner Calimutan at the back of the victim Cantre, does not necessarily contradict his testimony before the
RTC that none of the external injuries of the victim Cantre were fatal.

Based on the foregoing discussion, the prosecution was able to establish that the proximate cause of the death
of the victim Cantre was the stone thrown at him by petitioner Calimutan. Proximate cause has been defined
as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred."27

The two other witnesses presented by the prosecution, namely Sañano and Belen Cantre, had adequately
recounted the events that transpired on 04 February 1996 to 05 February 1996. Between the two of them, the
said witnesses accounted for the whereabouts, actions, and physical condition of the victim Cantre during the
said period. Before the encounter with petitioner Calimutan and Bulalacao, the victim Cantre seemed to be
physically fine. However, after being hit at the back by the stone thrown at him by petitioner Calimutan, the
victim Cantre had continuously complained of backache. Subsequently, his physical condition rapidly
deteriorated, until finally, he died. Other than being stoned by petitioner Calimutan, there was no other instance
when the victim Cantre may have been hit by another blunt instrument which could have caused the laceration
of his spleen.

Hence, this Court is morally persuaded that the victim Cantre died from a lacerated spleen, an injury sustained
after being hit by a stone thrown at him by petitioner Calimutan. Not even the post-mortem report of Dr.
Ulanday, the Municipal Health Officer who first examined the body of the victim Cantre, can raise reasonable
doubt as to the cause of death of the victim Cantre. Invoking Dr. Ulanday’s post-mortem report, the defense
insisted on the possibility that the victim Cantre died of food poisoning. The post-mortem report, though, cannot
be given much weight and probative value for the following reasons –

First, a closer scrutiny of the words used by Dr. Ulanday in her post-mortem report, as well as in the death
certificate of the victim Cantre, reveals that although she suspected food poisoning as the cause of death, she
held back from making a categorical statement that it was so. In the post-mortem report, 28 she found that "x x
x the provable (sic) cause of death was due to cardio-respiratory arrest. Food poisoning must be confirm (sic)
by laboratory e(x)am." In the death certificate of the victim Cantre, 29 she wrote that the immediate cause of
death was "Cardio-Respiratory Arrest" and the antecedent cause was "Food Poisoning Suspect." There was
no showing that further laboratory tests were indeed conducted to confirm Dr. Ulanday’s suspicion that the
victim Cantre suffered from food poisoning, and without such confirmation, her suspicion as to the cause of
death remains just that – a suspicion.

Second, Dr. Ulanday executed before the NBI a sworn statement30 in which she had explained her findings in
the post-mortem report, to wit –

05. Q: Did you conduct an autopsy on his cadaver?

A: I did sir, but not as exhaustive as that done by the NBI Medico-legal.

06. Q: Now, what do you want to state regarding your certification on the death of PHILIP B. CANTRE?

A: I stated in the certification and even in the Death Certificate about "Food Poisoning". What I stated in the
Death Certificate was that CANTRE was a SUSPECTED victim of food poisoning. I didn’t state that he was a
case of food poisoning. And in the Certification, I even recommended that an examination be done to confirm
that suspicion.

07. Q: What gave you that suspicion of poisoning?

A: As there were no external signs of fatal injuries except that of the contusion or abrasion, measuring as that
size of a 25 centavo coin, I based my suspicion from the history of the victim and from the police investigation.

08. Q: You also mentioned in your Certification that there was no internal hemorrhage in the cadaver. Did you
open the body of the cadaver?

A: As I have already stated sir, I did not conduct an exhaustive autopsy. I made an incision on the abdomen
and I explored the internal organs of the cadaver with my hand in search for any clotting inside. But I found
none. I did not open the body of the cadaver.

09. Q: You mentioned about a contusion you have observed on the cadaver. Where was it located?

A: On the left portion of his back, sir.

10. Q: Now, is it possible that if somebody be hit by a hard object on that part of his body, his SPLEEN could
be injured?

A: Yes, sir. But that would depend on how strong or forceful the impact was.

In contrast, Dr. Mendez described in his testimony before the RTC31 how he conducted the autopsy of the body
of the victim Cantre, as follows –

Q What specific procedure did you do in connection with the exhumation of the body of the victim in this case?

A We opened the head, chest and the abdomen.

Q That was part of the autopsy you have conducted?

A Yes, sir.

Q Aside from opening the head as well as the body of the victim Philip Cantre, what other matters did you do in
connection therewith?

A We examined the internal organs.

Q What in particular internal organs you have examined?

A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus the intestines.

xxxx

Q The cause of death as you have listed here in your findings is listed as traumatic injury of the abdomen, will
you kindly tell us Doctor what is the significance of this medical term traumatic injury of the abdomen?
A We, medico-legal officers of the NBI don’t do what other doctors do as they make causes of death as internal
hemorrhage we particularly point to the injury of the body like this particular case the injury was at the
abdomen of the victim.

Q Will you tell as Doctor what particular portion of the abdomen of the victim this traumatic injury is located?

A Along the midline but the damaged organ was at the left.

Q What particular organ are you referring to?

A The spleen, sir.

The difference in the extent of the examinations conducted by the two doctors of the body of the victim Cantre
provides an adequate explanation for their apparent inconsistent findings as to the cause of death. Comparing
the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim
Cantre, as opposed to the exhaustive autopsy performed by Dr. Mendez and his definitive finding of a ruptured
spleen as the cause of death of the victim Cantre, then the latter, without doubt, deserves to be given credence
by the courts.

Third, that the prosecution no longer presented Dr. Ulanday before the RTC despite being included in its list of
witnesses did not amount to a willful suppression of evidence that would give rise to the presumption that her
testimony would be adverse to the prosecution if produced.32 As this Court already expounded in the case
ofPeople v. Jumamoy33 –

The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to
the contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to
determine the witnesses to be presented for the prosecution. If the prosecution has several eyewitnesses, as
in the instant case, the prosecutor need not present all of them but only as many as may be needed to meet
the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The
testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature.
This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of
evidence and would not be fatal to the prosecution's case. Besides, there is no showing that the eyewitnesses
who were not presented in court as witnesses were not available to the accused. We reiterate the rule that the
adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful;
(2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the
disposal of both parties; and (4) the suppression is an exercise of a privilege. Moreover, if the accused
believed that the failure to present the other witnesses was because their testimonies would be unfavorable to
the prosecution, he should have compelled their appearance, by compulsory process, to testify as his own
witnesses or even as hostile witnesses.

It was a judgment call for the prosecution to no longer present Dr. Ulanday before the RTC, perhaps believing
that it had already presented sufficient evidence to merit the conviction of petitioner Calimutan even without her
testimony. There was nothing, however, preventing the defense from calling on, or even compelling, with the
appropriate court processes, Dr. Ulanday to testify in court as its witness if it truly believed that her testimony
would be adverse to the case presented by the prosecution.

While this Court is in accord with the factual findings of the RTC and the Court of Appeals and affirms that
there is ample evidence proving that the death of the victim Cantre was caused by his lacerated spleen, an
injury which resulted from being hit by the stone thrown at him by petitioner Calimutan, this Court, nonetheless,
is at variance with the RTC and the Court of Appeals as to the determination of the appropriate crime or
offense for which the petitioner should have been convicted for.

Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in
particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are distinguished from
each other by the existence or absence of malicious intent of the offender –
In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is
performed with deliberate intent (with malice). The offender, in performing the act or in incurring the
omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the
offender is notmalicious. The injury caused by the offender to another person is "unintentional, it being simply
the incident of another act performed without malice." (People vs. Sara, 55 Phil. 939). As stated in Art. 3, the
wrongful act results from imprudence, negligence, lack of foresight or lack of skill.34

In the Petition at bar, this Court cannot, in good conscience, attribute to petitioner Calimutan any malicious
intent to injure, much less to kill, the victim Cantre; and in the absence of such intent, this Court cannot sustain
the conviction of petitioner Calimutan for the intentional crime of homicide, as rendered by the RTC and
affirmed by the Court of Appeals. Instead, this Court finds petitioner Calimutan guilty beyond reasonable doubt
of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal
Code.

Article 365 of the Revised Penal Code expressly provides for the definition of reckless imprudence –

Reckless imprudence consists in voluntarily, 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.

There are several circumstances, discussed in the succeeding paragraphs, that demonstrate petitioner
Calimutan’s lack of intent to kill the victim Cantre, and conversely, that substantiate the view of this Court that
the death of victim Cantre was a result of petitioner Calimutan’s reckless imprudence. The RTC and the Court
of Appeals may have failed to appreciate, or had completely overlooked, the significance of such
circumstances.

It should be remembered that the meeting of the victim Cantre and witness Sañano, on the one hand, and
petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties were
on their way to different destinations. The victim Cantre and witness Sañano were on their way home from a
drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were walking from the
market to Crossing Capsay. While the evidence on record suggests that a running grudge existed between the
victim Cantre and Bulalacao, it did not establish that there was likewise an existing animosity between the
victim Cantre and petitioner Calimutan.1avvphil.net

In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was the
victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and companion of
petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift and unprovoked,
which spurred petitioner Calimutan into responsive action. Given that this Court dismisses the claim of
petitioner Calimutan that the victim Cantre was holding a knife, it does take into account that the victim Cantre
was considerably older and bigger, at 26 years of age and with a height of five feet and nine inches, compared
to Bulalacao, the boy he attacked, who was only 15 years old and stood at about five feet. Even with his bare
hands, the victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and
to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim
Cantre. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a
road. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the
part of petitioner Calimutan as it is highly probable that in the midst of the fray, he threw the stone rashly and
impulsively, with no regard as to the position of the victim Cantre. When the victim Cantre stopped his
aggression after being hit by the stone thrown by petitioner Calimutan, the latter also desisted from any other
act of violence against the victim Cantre.

The above-described incident could not have taken more than just a few minutes. It was a very brief scuffle, in
which the parties involved would hardly have the time to ponder upon the most appropriate course of action to
take. With this in mind, this Court cannot concur in the declaration made by the Court of Appeals that petitioner
Calimutan threw the stone at the victim Cantre as a retaliatory act. It was evidently a swift and spontaneous
reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. That Bulalacao was
already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who,
under the pressure of the circumstances, was forced to act as quickly as possible.

The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the
specific intent of killing, or at the very least, of harming the victim Cantre. What is obvious to this Court was
petitioner Calimutan’s intention to drive away the attacker who was, at that point, the victim Cantre, and to
protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than the victim
Cantre.35

Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim
Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a stone the size
of a man’s fist could inflict substantial injury on someone. He also miscalculated his own strength, perhaps
unaware, or even completely disbelieving, that he could throw a stone with such force as to seriously injure, or
worse, kill someone, at a quite lengthy distance of ten meters.

Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate
cause of the latter’s death, despite being done with reckless imprudence rather than with malicious intent,
petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains the reward made by the
RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of P50,000.00 as civil indemnity
for his death and another P50,000.00 as moral damages.

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001,
affirming the Decision of the RTC in Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED.
Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide,
under Article 365 of the Revised Penal Code, and is accordingly sentenced to imprisonment for a minimum
period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional.
Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of P50,000.00 as
civil indemnity for the latter’s death and P50,000.00 as moral damages.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s
Division.

ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes

1
Penned by Associate Justice Perlita J. Tria Tirona with Associate Justices Eugenio S. Labitoria and
Eloy R. Bello, Jr., concurring; Rollo, pp. 21-26.

2
Penned by Judge Narciso G. Bravo, Id., pp. 27-31.

3 RTC Records, p. 1.

4 Id., p. 18.

5 Order of Release, penned by Judge Designate Silvestre L. Aguirre, Id., p. 38.

6
Bailbond, Id., pp. 32-35.

7
Certificate of Arraignment, Id., p. 46.

8 TSN, 15 January 1998, pp. 1-13.

9 TSN, 16 January 1998, pp. 1-8.

10
RTC records, p. 12.

11
Id., p. 11.

12 Id., pp. 13-14.

13 TSN, 23 September 1997, pp. 1-16.

14 TSN, 17 March 1998, pp. 1-18.

15
Id.

16
Rollo, pp. 30-31.

17 Id., p. 25.

18 Id., p. 35.

19 Id., p. 17.

20
Revised Rules of Court, Rule 133, Section 2.

21
TSN, 23 September 1993, p. 2.

22 Pedro P. Solis, LEGAL MEDICINE, p. 2 (1987).

23 REVISED RULES OF COURT, Rule 130, Section 49.

24
Supra note 22, p. 317.
 25
Id., p. 319.

26
II Seymour I. Schwartz, et al., PRINCIPLES OF SURGERY, p. 1377 (4th ed., 1984).

27 Vda. de Bataclan v. Medina, 102 Phil. 181, 186 (1957).

28 RTC records, p. 12.

29 Id., p. 11.

30
Id., p. 10.

31
TSN, 23 September 1997, pp. 5-9.

32 Revised Rules of Court, Rule 131, Section 3(e).

33 G.R. No. 101584, 07 April 1993, 221 SCRA 333, 344-345.

34 I Luis B. Reyes, The Revised Penal Code, pp. 33-34 (13th Ed., 1993).

35
In the following cases, the accused were convicted of reckless imprudence resulting in homicide,
rather than murder or homicide, for they were found to have acted without criminal intent: (1) The
accused, a faith healer, who caused the death of a boy after she immersed the boy in a drum of water,
banged the boy’s head against a wooden bench, pounded the boy’s chest with clenched fists, and
stabbed the boy to collect his blood. The boy was allegedly possessed by an evil spirit which the
accused was merely attempting to drive out (People v. Carmen, G.R. No. 137268, 26 March 2001, 355
SCRA 267); (2) The accused shot his gun at the ground to stop a fist fight, and when the bullet
ricocheted, it hit and killed a bystander (People v. Nocum, 77 Phil. 1018 [1947]); (3) The accused
carried a gun to shoot birds, when the victim attempted to wrest possession thereof. The gun went off,
hitting and killing the victim (People v. Sara, 55 Phil 939 [1931]); and (4) While hunting, the accused
shot at and killed what he thought was a prey, but who turned out to be one of his companions (People
v. Ramirez, 48 Phil 204 [1926]).

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 4963 September 15, 1909

THE UNITED STATES, plaintiff-appellee,

vs.
GO CHICO, defendant-appellant.

Gibbs and Gale for appellant.

Office of the Solicitor-General Harvey for appellee.

MORELAND, J.:

The defendant is charged with the violation of section 1 of Act No. 1696 of the Philippine Commission, which
reads as follows:

Any person who shall expose, or cause or permit to be exposed, to public view on his own premises, or
who shall expose, or cause to be exposed, to public view, either on his own premises or elsewhere, any
flag, banner, emblem, or device used during the late insurrection in the Philippine Islands to designate
or identify those in armed rebellion against the United States, or any flag, banner, emblem, or device
used or adopted at any time by the public enemies of the United States in the Philippine Island for the
purpose of public disorder or of rebellion or insurrection against the authority of the United States in the
Philippine Islands, or any flag, banner, emblem, or device of the Katipunan Society, or which is
commonly known as such, shall be punished by a fine of not less that five hundred pesos for more than
five thousand pesos, or by imprisonment for not less than three months nor more than five years, or by
both such fine and imprisonment, in the discretion of the court.

The defendant was tried in the Court of First Instance of the city of Manila on the 8th day of September, 1908.
After hearing the evidence adduced the court adjudged the defendant guilty of the crime charged and
sentenced him under that judgment to pay a fine of P500, Philippine currency, and to pay the costs of the
action, and to suffer subsidiary imprisonment during the time and in the form and in the place prescribed by law
until said fine should be paid. From that judgment and sentence the defendant appealed to this court.

A careful examination of the record brought to this court discloses the following facts:

That on or about the 4th day of August, 1908, in the city of Manila, the appellant Go Chico displayed in one of
the windows and one of the show cases of his store, No. 89 Calle Rosario, a number of medallions, in the form
of a small button, upon the faces of which were imprinted in miniature the picture of Emilio Aguinaldo, and the
flag or banner or device used during the late insurrection in the Philippine Islands to designate and identify
those in armed insurrection against the United States. On the day previous to the one above set forth the
appellant had purchased the stock of goods in said store, of which the medallions formed a part, at a public
sale made under authority of the sheriff of the city of Manila. On the day in question, the 4th of August
aforesaid, the appellant was arranging his stock of goods for the purpose of displaying them to the public and
in so doing placed in his showcase and in one of the windows of his store the medallions described. The
appellant was ignorant of the existence of a law against the display of the medallions in question and had
consequently no corrupt intention. The facts above stated are admitted.

The appellant rests his right to acquittal upon two propositions:

First. That before a conviction under the law cited can be had, a criminal intent upon the part of the accused
must be proved beyond a reasonable doubt.
Second. That the prohibition of the law is directed against the use of the identical banners, devices, or
emblems actually used during the Philippine insurrection by those in armed rebellion against the United States.

In the opinion of this court it is not necessary that the appellant should have acted with the criminal intent. In
many crimes, made such by statutory enactment, the intention of the person who commits the crime is entirely
immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially
worthless. It would be impossible of execution. In many cases the act complained of is itself that which
produces the pernicious effect which the statute seeks to avoid. In those cases the pernicious effect is
produced with precisely the same force and result whether the intention of the person performing the act is
good or bad. The case at bar is a perfect illustration of this. The display of a flag or emblem used particularly
within a recent period, by the enemies of the Government tends to incite resistance to governmental functions
and insurrection against governmental authority just as effectively if made in the best of good faith as if made
with the most corrupt intent. The display itself, without the intervention of any other factor, is the evil. It is quite
different from that large class of crimes, made such by the common law or by statute, in which the injurious
effect upon the public depends upon the corrupt intention of the person perpetrating the act. If A discharges a
loaded gun and kills B, the interest which society has in the act depends, not upon B's death, upon the
intention with which A consummated the act. If the gun were discharged intentionally, with the purpose of
accomplishing the death of B, then society has been injured and its security violated; but if the gun was
discharged accidentally on the part of A, then society, strictly speaking, has no concern in the matter, even
though the death of B results. The reason for this is that A does not become a danger to society and
institutions until he becomes a person with a corrupt mind. The mere discharge of the gun and the death of B
do not of themselves make him so. With those two facts must go the corrupt intent to kill. In the case at bar,
however, the evil to society and the Governmental does not depend upon the state of mind of the one who
displays the banner, but upon the effect which that display has upon the public mind. In the one case the public
is affected by the intention of the actor; in the other by the act itself.

It is stated in volume 12 of Cyc., page 148, that —

The legislature, however, may forbid the doing of an act and make its commission a crime without
regard to the intent of the doer, and if such an intention appears the courts must give it effect although
the intention may have been innocent. Whether or not in a given case the statute is to be so construed
is to be determined by the court by considering the subject-matter of the prohibition as well as the
language of the statute, and thus ascertaining the intention of the legislature.

In the case of The People vs. Kibler (106 N. Y., 321) the defendant was charged with the sale of adulterated
milk under a statute reading as follows:

No person or persons shall sell or exchange or expose for sale or exchange any impure, unhealthy,
adulterated, of unwholesome milk.

It was proved in that case that one Vandeburg purchased at the defendant's store 1 pint of milk which was
shown to contain a very small percentage of water more than that permitted by the statute. There was no
dispute about the facts, but the objection made by the defendant was that he was not allowed, upon the trial, to
show an absence of criminal intent, or to go the jury upon the question whether it existed, but was condemned
under a charge from the court which made his intent totally immaterial and his guilt consist in having sold the
adulterated article whether he knew it or not and however carefully he may have sought to keep on hand and
sell the genuine article.

The opinion of the court in that case says:

As the law stands, knowledge or intention forms no elements of the offense. The act alone, irrespective
of its motive, constitutes the crime.

xxx xxx xxx

 It is notorious that the adulteration of food products has grown to proportions so enormous as to
menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and
heedless consumers are exposed to increasing perils. To redress such evils is a plain duty but a
difficult task. Experience has taught the lesson that repressive measures which depend for their
efficiency upon proof of the dealer's knowledge or of his intent to deceive and defraud are of title use
and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the
seller the entire responsibility of the purity and soundness of what he sells and compels him to know
and certain.

In the case of Gardner vs. The People (62 N. Y., 299) the question arose under a statute which provided that
an inspector of elections of the city of New York should not be removed from office except "after notice in
writing to the officer sought to be removed, which notice shall set forth clearly and distinctly the reasons for his
removal," and further provided that any person who removed such an officer without such notice should be
guilty of a misdemeanor. An officer named Sheridan was removed by Gardener, the defendant, without notice.
Gardener was arrested and convicted of a misdemeanor under the statute. He appealed from the judgment of
conviction and the opinion from which the following quotation is made was written upon the decision of that
appeal. Chief Justice Church, writing the opinion of the court, says in relation to criminal intent:

In short, the defense was an honest misconstruction of the law under legal device. The court ruled out
the evidence offered, and held that intentionally doing the act prohibited constituted the offense. It is
quite clear that the facts offered to be shown, if true, would relieve the defendant from the imputation of
a corrupt intent, and, indeed, from any intent to violate the statute. The defendants made a mistake of
law. Such mistakes do not excuse the commission of prohibited acts. "The rule on the subject appears
to be, that in acts mala in se, intent governs but in those mala prohibit a, the only inquiry is, has the law
been violated?

xxx xxx xxx

The authorities seem to establish that sustain and indictment for doing a prohibited act, it is sufficient to
prove that the act was knowingly and intentionally done.

xxx xxx xxx

In this case, if the defendants could have shown that they believed that in fact notice had been given to
the inspector, although it had not, they would not have been guilty of the offense, because the intention
to do the act would have been wanting. Their plea is: True, we intended to remove the inspector without
notice, but we thought the law permitted it. This was a mistake of law, and is not strictly a defense.

xxx xxx xxx

If the offense is merely technical, the punishment can be made correspondingly nominal; while a rule
requiring proof of a criminal intent to violate the statute, independent of an intent to do the act which the
statute declares shall constitute the offense, would, in many cases, prevent the restraining influence
which the statute was designed to secure.

In the case of Fiedler vs. Darrin (50 N.Y., 437) the court says:

But when an act is illegal, the intent of the offender is immaterial.

In the case of The Commonwealth vs. Murphy (165 Mass., 66) the court says:

In general, it may be said that there must be malus animus, or a criminal intent. But there is a large
class of cases in which, on grounds of public policy, certain acts are made punishable without proof that
the defendant understands the facts that give character to his act.
 In such cases it is deemed best to require everybody at his peril to ascertain whether his act comes
within the legislative prohibition.

xxx xxx xxx

Considering the nature of the offense, the purpose to be accomplished, the practical methods available
for the enforcement of the law, and such other matters as throw light upon the meaning of the language,
the question in interpreting a criminal statute is whether the intention of the legislature was to make
knowledge of the facts an essential element of the offense, or to put upon everyone the burden of
finding out whether his contemplated act is prohibited, and of refraining from it if it is.

In the case of Halsted vs. The State (41 N. J. L., 552; 32 Am. Rep., 247), the question of a criminal intent arose
under a statute, under which the defendant was convicted of a crime, providing that if any township committee
or other body shall disburse or vote for the disbursement of public moneys in excess of appropriations made
for the purpose, the persons constituting such board shall be guilty of a crime. The defendant was one who
violated this law by voting to incur obligations in excess of the appropriation. He was convicted and appealed
and the opinion from which the quotation is taken was written upon a decision of that appeal. That court says:

When the State had closed, the defense offered to show that the defendant, in aiding in the passage
and effectuation of the resolution which I have pronounced to be illegal, did so under the advice of
counsel and in good faith, and from pure and honest motives, and that he therein exercise due care
and caution.

xxx xxx xxx

As there is an undoubted competency in the lawmaker to declare an act criminal, irrespective of the
knowledge or motive of the doer of such act, there can be of necessity, no judicial authority having the
power to require, in the enforcement of the law, such knowledge or motive to be shown. In such
instances the entire function of the court is to find out the intention of the legislature, and to enforce the
law in absolute conformity to such intention. And in looking over the decided cases on the subject it will
be found that in the considered adjudications this inquiry has been the judicial guide.

In the case of Rex vs. Ogden (6 C. & P., 631; 25 E. C. L., 611), the prisoner was indicted for unlawfully
transposing from one piece of wrought plate to another the lion-poisson contrary to the statutes. It was
conceded that the act was done without any fraudulent intention. The court said:

There are no words in the act of Parliament referring to any fraudulent intention. The words of it are,
'Shall transpose or remove, or cause of procure to be transposed or removed, from one piece of
wrought plate to another.

In the case of The State vs. McBrayer (98 N. C., 623) the court stated:

It is a mistaken notion that positive, willful intent to violate the criminal law is an essential ingredient in
every criminal offense, and that where is an absence of such intent there is no offense; this is
especially true as to statutory offenses. When the statute plainly forbids an act to be done, and it is
done by some person, the law implies conclusively the guilty intent, although the offender was honestly
mistaken as to the meaning of the law he violates. When the language is plain and positive, and the
offense is not made to depend upon the positive, willful intent and purpose, nothing is left to
interpretation.

In the case of the Commonwealth vs. Weiss (139 Pa. St., 247), the question arose on an appeal by the
defendant from a judgment requiring him to pay a penalty for a violation of the statute of the State which
provided that any person would be liable to pay a penalty "who shall manufacture, sell, or offer or expose for
sale, or have in his possession with intent to sell," oleomargarine, etc. At the trial the defendant requested the
court to instruct the injury that if they believed, from the evidence, that the defendant did not knowingly furnish
or authorize to be furnished, or knew of there furnished, to any of his customers any oleomargarine, but, as far
as he knew, furnished genuine butter, then the verdict must be for the defendant. The court refused to make
the charge as requested and that is the only point upon which the defendant appealed.

The court says:

The prohibition is absolute and general; it could not be expressed in terms more explicit and
comprehensive. The statutory definition of the offense embraces no word implying that the forbidden
act shall be done knowingly or willfully, and if it did, the designed purpose of the act would be practically
defeated. The intention of the legislature is plain, that persons engaged in the traffic so engage in it at
their peril and that they can not set up their ignorance of the nature and qualities of the commodities
they sell, as a defense.

The following authorities are to the same effect: State vs. Gould (40 Ia., 374); Commonwealth vs. Farren (9
Allen, 489); Commonwealth vs. Nichols (10 Allen, 199); Commonwealth vs. Boyton (2 Allen, 160); Wharton's
Criminal Law, section 2442; Commonwealth vs. Sellers (130 Pa., 32); 3 Greenleaf on Evidence, section 21;
Farrell vs. The State (32 Ohio State, 456); Beekman vs. Anthony (56 Miss., 446); The People vs. Roby (52
Mich., 577).

It is clear from the authorities cited that in the act under consideration the legislature did not intend that a
criminal intent should be a necessary element of the crime. The statutory definition of the offense embraces no
word implying that the prohibited act shall be done knowingly or willfully. The wording is plain. The Act means
what it says. Nothing is left to the interpretation.

Care must be exercised in distiguishing the differences between the intent to commit the crime and the intent
to perpetrate the act. The accused did not consciously intend to commit a crime; but he did intend to commit an
act, and the act is, by the very nature of things, the crime itself — intent and all. The wording of the law is such
that the intent and the act are inseparable. The act is the crime. The accused intended to put the device in his
window. Nothing more is required to commit the crime.

We do not believe that the second proposition of the accused, namely, that the law is applicable only to the
identical banners, etc., actually used in the late insurrection, and not to duplicates of those banners, can be
sustained.

It is impossible that the Commission should have intended to prohibit the display of the flag or flags actually
used in the insurrection, and, at the same time, permit exact duplicates thereof (saving, perhaps, size) to be
displayed without hindrance. In the case before us, to say that the display of a certain banner is a crime and
that the display of its exact duplicate is not is to say nonsense. The rules governing the interpretation of
statutes are rules of construction not destruction. To give the interpretation contended for by the appellant
would, as to this particular provision, nullify the statute altogether.

The words "used during the late insurrection in the Philippine Islands to designate or identity those in armed
rebellion against the United States" mean not only the identical flags actually used in the insurrection, but any
flag which is of that type. This description refers not to a particular flag, but to a type of flag. That phrase was
used because there was and is no other way of describing that type of flag. While different words might be
employed, according to the taste of the draftsman, the method of description would have to be the same.
There is no concrete word known by which that flag could be aptly or properly described. There was no
opportunity, within the scope of a legislative enactment, to describe the physical details. It had no
characteristics whatever, apart from its use in the insurrection, by which it could, in such enactment, be
identified. The great and the only characteristic which it had upon the which the Commission could seize as a
means of description and identification was the fact that it was used in the insurrection. There was, therefore,
absolutely no way in which the Commission could, in the Act, describe the flag except by reciting where and
how it was used. It must not be forgotten that the Commission, by the words and phrases used, was not
attempting to describe a particular flag, but a type of flag. They were not describing a flag used upon a
particular field or in a certain battle, but a type of flag used by an army — a flag under which many persons
rallied and which stirred their sentiments and feelings wherever seen or in whatever form it appeared. It is a
mere incident of description that the flag was used upon a particular field or in a particular battle. They were
describing the flag not a flag. It has a quality and significance and an entity apart from any place where or form
in which it was used.

Language is rarely so free from ambiguity as to be incapable of being used in more than one sense,
and the literal interpretation of a statute may lead to an absurdity or evidently fail to give the real intent
of the legislature. When this is the case, resort is had to the principle that the spirit of a law controls the
letter, so that a thing which is within the intention of a statute is as much within the statute as if it were
within the letter, and a thing which is within the letter of the statute is not within the statute unless it be
within the intention of the makers, and the statute should be construed as to advance the remedy and
suppress the mischief contemplated by the framers. (U. S. vs. Kirby, 7 Wall., 487; State Bolden, 107
La., 116, 118; U.S.vs. Buchanan, 9 Fed. Rep., 689; Green vs. Kemp, 13 Mass., 515; Lake Shore R. R.
Co. vs. Roach, 80 N. Y., 339; Delafield vs. Brady, 108 N. Y., 524 Doyle vs. Doyle, 50 Ohio State, 330.)

The intention of the legislature and the object aimed at, being the fundamental inquiry in judicial
construction, are to control the literal interpretation of particular language in a statute, and language
capable of more than one meaning is to be taken in that sense which will harmonize with such intention
and object, and effect the purpose of the enactment. (26 Am. & Eng. Ency. of Law., 602.)

Literally hundreds of cases might be cited to sustain this proposition.

The preamble is no part of the statute, but as setting out the object and intention of the legislature, it is
considered in the construction of an act. Therefore, whenever there is ambiguity, or wherever the words
of the act have more than one meaning, and there is no doubt as to the subject-matter to which they
are to be applied, the preamble may be used." (U. S. vs. Union Pacific R. R. Co., 91 U. S., 72;
Platt vs. Union Pacific R. R. Co., 99 U. S., 48; Myer vs. Western Car Co., 102 U. S., 1; Holy Trinity
Church vs. U. S., 143 U. S., 457; Coosaw Mining Co. vs. South Carolina, 144 U. S., 550;
Cohn vs. Barrett, 5 Cal., 195; Barnes vs.Jones, 51 Cal., 303; Field vs. Gooding, 106 Mass., 310;
People vs. Molineaux, 40 N. Y., 113; Smith vs. The People, 47 N. Y., 330; The People vs. Davenport,
91 N.Y., 547; The People vs. O'Brien, 111 N.Y., 1)

The statute, then, being penal, must be construed with such strictness as to carefully safeguard the
rights of the defendant and at the same time preserve the obvious intention of the legislature. If the
language be plain, it will be construed as it reads, and the words of the statute given their full meaning;
if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were
remedial. In both cases it will endeavor to effect substantial justice." (Bolles vs. Outing Co., 175 U. S.,
262, 265; U. S. vs.Wiltberger, 5 Wheat., 76, 95; U. S. vs. Reese, 92 U. S., 214)

It is said that notwithstanding this rule (the penal statutes must be construde strictly) the intention of the
lawmakers must govern in the construction of penal as well as other statutes. This is true, but this is not
a new, independent rule which subverts the old. It is a modification of the known maxim and amounts to
this -- that though penal statutes are to be construed strictly, they are not be construed so strictly as to
defeat the obvious purpose of the legislature. (U. S. vs. Wiltberger, 5 Wheat., 76; Taylor vs. Goodwin, L.
R. 4, Q. B. Civ., 228.)

In the latter case it was held that under a statute which imposed a penalty for "furiously driving any sort of
carriage" a person could be convicted for immoderately driving a bicycle.

It is presumed that the legislature intends to impart to its enactments such a meaning as will render
then operative and effective, and to prevent persons from eluding or defeating them. Accordingly, in
case of any doubt or obscurity, the construction will be such as to carry out these objects. (Black,
Interpretation of Laws, p. 106.)

In The People vs. Supervisors (43 N. Y., 130) the court said:
 The occasion of the enactment of a law always be referred to in interpreting and giving effect to it. The
court should place itself in the situation of the legislature and ascertain the necessity and probable
object of the statute, and then give such construction to the language used as to carry the intention of
the legislature into effect so far as it can be ascertained from the terms of the statute itself. (U.
S. vs. Union Pacific R. R. Co., 91 U. S., 72, 79.)

We do not believe that in construing the statute in question there is necessity requiring that clauses should be
taken from the position given them and placed in other portions of the statute in order to give the whole Act a
reasonable meaning. Leaving all of the clauses located as they now are in the statute, a reasonable
interpretation, based upon the plain and ordinary meaning of the words used, requires that the Act should be
held applicable to the case at bar.

The judgment of the court below and the sentence imposed thereunder are hereby affirmed. So ordered.

Arellano, C. J., Torres, and Carson, JJ., concur.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-42288 February 16, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
CORNELIO BAYONA, defendant-appellant.

Gervasio Diaz for appellant.

Office of the Solicitor-General Hilado for appellee.

VICKERS, J.:

This is an appeal from a decision of Judge Braulio Bejasa in the Court of First Instance of Capiz, finding the
defendant guilty of a violation of section 416 of the Election Law and sentencing him to suffer imprisonment for
thirty days and to pay a fine of P50, with subsidiary imprisonment in case of insolvency, and to pay the costs.

The facts as found by the trial judge are as follows:

A eso de las once de la mañana del dia 5 de junio de 1934, mientras se celebrahan las elecciones
generales en el precinto electoral numero 4, situado en el Barrio de Aranguel del Municipio de Pilar,
Provincia de Capiz, el aqui acusado fue sorprendido por Jose E. Desiderio, que era entonces el
representante del Departamento del Interior para inspecionar las elecciones generales en la Provincia
de Capiz, y por el comandante de la Constabularia F.B. Agdamag que iba en aquella ocasion con el
citado Jose E. Desiderio, portando en su cinto el revolver Colt de calibre 32, No. 195382, Exhibit A,
dentro del cerco que rodeaba el edificio destinado para el citado colegio electoral numero 4 y a una
distancia de 22 metros del referido colegio electoral. Inmediatament Jose E. Desiderio se incauto del
revolver en cuestion.

La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro Buenvenida, trato de establecer
que el aqui acusado paro en la calle que daba frente al colegio electoral numero 4 a invitacion de dicho
Jose D. Benliro y con el objeto de suplicarle al mencionado acusado para llevar a su casa a los
electores del citado Jose D. Benliro que ya habian terminado de votar, y que cuando llegaron Jose E.
Desidierio y el comadante F.B. Agdamag, el aqui acusado estaba en la calle. Desde el colegio electoral
hasta el sitio en que, segun dichos testigos, estaba el acusado cuando se le quito el revolver Exhibit a,
hay una distancia de 27 metros.

Appellant's attorney makes the following assignments of error:

1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con su revolver dentro del cerco
de la casa escuela del Barrio de Aranguel, Municipio de Pilar, que fue habilitado como colegio electoral.

2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de la Ley Electoral querrellada
y, por consiguiente, al condenarle a prision y multa.

As to the question of fact raised by the first assignment of error, it is sufficient to say that the record shows that
both Jose E. Desiderio, a representative of the Department of the Interior, and Major Agdamag of the
Philippine Constabulary, who had been designated to supervise the elections in the Province of Capiz, testified
positively that the defendant was within the fence surrounding the polling place when Desiderio took
possession of the revolver the defendant was carrying. This also disposes of that part of the argument under
the second assignment of error based on the theory that the defendant was in a public road, where he had a
right to be, when he was arrested. The latter part of the argument under the second assignment of error is that
if it be conceded that the defendant went inside of the fence, he is nevertheless not guilty of a violation of the
Election Law, because he was called by a friend and merely approached him to find out what he wanted and
had no interest in the election; that there were many people in the public road in front of the polling place, and
the defendant could not leave his revolver in his automobile, which he himself was driving, without running the
risk of losing it and thereby incurring in a violation of the law.

As to the contention that the defendant could not leave his revolver in his automobile without the risk of losing it
because he was alone, it is sufficient to say that under the circumstances it was not necessary for the
defendant to leave his automobile merely because somebody standing near the polling place had called him,
nor does the record show that it was necessary for the defendant to carry arms on that occasion.

The Solicitor-General argues that since the Government does not especially construct buildings for electoral
precincts but merely utilizes whatever building there may be available, and all election precincts are within fifty
meters from some road, a literal application of the law would be absurd, because members of the police force
or Constabulary in pursuit of a criminal would be included in that prohibition and could not use the road in
question if they were carrying firearms; that people living in the vicinity of electoral precincts would be
prohibited from cleaning or handling their firearms within their own residences on registration and election
days;

That the object of the Legislature was merely to prohibit the display of firearms with intention to influence in any
way the free and voluntary exercise of suffrage;

That if the real object of the Legislature was to insure the free exercise of suffrage, the prohibition in question
should only be applied when the facts reveal that the carrying of the firearms was intended for the purpose of
using them directly or indirectly to influence the free choice of the electors (citing the decision of this court in
the case of People vs. Urdeleon [G.R. No. 31536, promulgated November 20, 1929, not reported], where a
policeman, who had been sent to a polling place to preserve order on the request of the chairman of the board
of election inspectors, was acquitted); that in the case at bar there is no evidence that the defendant went to
the election precinct either to vote or to work for the candidacy of anyone, but on the other hand the evidence
shows that the defendant had no intention to go to the electoral precinct; that he was merely passing along the
road in front of the building where the election was being held when a friend of his called him; that while in the
strict, narrow interpretation of the law the defendant is guilty, it would be inhuman and unreasonable to convict
him.

We cannot accept the reasons advanced by the Solicitor-General for the acquittal of the defendant. The law
which the defendant violated is a statutory provision, and the intent with which he violated it is immaterial. It
may be conceded that the defendant did not intend to intimidate any elector or to violate the law in any other
way, but when he got out of his automobile and carried his revolver inside of the fence surrounding the polling
place, he committed the act complained of, and he committed it willfully. The act prohibited by the Election Law
was complete. The intention to intimidate the voters or to interfere otherwise with the election is not made an
essential element of the offense. Unless such an offender actually makes use of his revolver, it would be
extremely difficult, if not impossible, to prove that he intended to intimidate the voters.

The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the
prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between the
intent to commit the crime and the intent to perpetrate the act. ..." (U.S. vs. Go Chico, 14 Phil., 128.)

While it is true that, as a rule and on principles of abstract justice, men are not and should not be held
criminally responsible for acts committed by them without guilty knowledge and criminal or at least evil
intent (Bishop's New Crim. Law, vol. I, sec. 286), the courts have always recognized the power of the
legislature, on grounds of public policy and compelled by necessity, "the great master of things", 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. (U.S. vs. Go Chico, 14 Phil., 128; U.S. vs. Ah Chong, 15 Phil.,
488.) In such cases no judicial authority has the power to require, in the enforcement of the law, such
knowledge or motive to be shown. (U.S. vs. Siy Cong Bieng and Co Kong, 30 Phil., 577.)
The cases suggested by the Solicitor-General do not seem to us to present any difficulty in the enforcement of
the law. If a man with a revolver merely passes along a public road on election day, within fifty meters of a
polling place, he does not violate the provision of law in question, because he had no intent to perpetrate the
act prohibited, and the same thing would be true of a peace officer in pursuing a criminal; nor would the
prohibition extend to persons living within fifty meters of a polling place, who merely clean or handle their
firearms within their own residences on election day, as they would not be carrying firearms within the
contemplation of the law; and as to the decision in the case of People vs. Urdeleon, supra, we have recently
held in the case of People vs. Ayre, and Degracia (p. 169, ante), that a policeman who goes to a polling place
on the request of the board of election inspectors for the purpose of maintaining order is authorized by law to
carry his arms.

If we were to adopt the specious reasoning that the appellant should be acquitted because it was not proved
that he tried to influence or intended to influence the mind of any voter, anybody could sell intoxicating liquor or
hold a cockfight or a horse race on election day with impunity.

As to the severity of the minimum penalty provided by law for a violation of the provision in question, that is a
matter for the Chief Executive or the Legislature.

For the foregoing reasons, the decision appealed from is affirmed, with the costs against the appellant.

Avanceña, C.J., Street, Abad Santos, and Hull, JJ., concur.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16486 March 22, 1921

THE UNITED STATES, plaintiff-appelle,

vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.

Angel Roco for appellant.

Acting Attorney-General Feria for appellee.

STREET, J.:

The rather singular circumstances attending the commission of the offense of homicide which is under
discussion in the present appeal are these:

At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in the Pasig River a
short distance from the lighthouse and not far from where the river debouches into the Manila Bay, a small
boat was sent out to raise the anchor. The crew of this boat consisted of the accused, Calixto Valdez y Quiri,
and six others among whom was the deceased, Venancio Gargantel. The accused was in charge of the men
and stood at the stern of the boat, acting as helmsman, while Venancio Gargantel was at the bow.

The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and he accordingly
began to abuse the men with offensive epithets. Upon this Venancio Gargantel remonstrated, saying that it
would be better, and they would work better, if he would not insult them. The accused took this remonstrance
as a display of insubordination; and rising in rage he moved towards Venancio, with a big knife in hand,
threatening to stab him. At the instant when the accused had attained to within a few feet of Venancio, the
latter, evidently believing himself in great and immediate peril, threw himself into the water and disappeared
beneath its surface to be seen no more.

The boat in which this incident took place was at the time possibly 30 or 40 yards from shore and was distant,
say, 10 paces from the Vigan. Two scows were moored to the shore, but between these and the boat
intervened a space which may be estimated at 18 or 20 yards. At it was full midday, and there was nothing to
obstruct the view of persons upon the scene, the failure of Venancio Gargantel to rise to the surface
conclusively shows that, owing to his possible inability to swim or the strength of the current, he was borne
down into the water and was drowned.

Two witnesses who were on the boat state that, immediately after Venancio leaped into the water, the accused
told the remaining members of the crew to keep quiet or he would kill them. For this reason they made no
movement looking to rescue; but inasmuch as there witnesses are sure that Venancio did not again come to
the surface, efforts at rescue would have been fruitless. The fact that the accused at his juncture threatened
the crew with violence is, therefore, of no moment except tho show the temporary excitement under which he
was laboring.

On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse to watch for the
body, in the hope that it might come to the surface and could thus be recovered. Though his friendly vigil lasted
three days nothing came of it.

It may be added that Venancio has not returned to his lodging in Manila, where he lived as a bachelor in the
house of an acquaintance; and his personal belongings have been delivered to a representative of his mother
who lives in the Province of Iloilo. His friends and relatives, it is needless to say, take it for granted that he is
dead.

The circumstances narrated above are such in our opinion as to exclude all reasonable possibility that
Venancio Gargantel may have survived; and we think that the trial judge did not err in holding that he is dead
and that he came to his death by drowning under the circumstances stated. The proof is direct that he never
rose to the surface after jumping into the river, so far as the observers could see; and this circumstance,
coupled with the known fact that human life must inevitably be extinguished by asphyxiation under water, is
conclusive of his death. The possibility that he might have swum ashore, after rising in a spot hidden from the
view of his companions, we consider too remote to be entertained for a moment.

As to the criminal responsibility of the accused for the death thus occasioned the likewise can be no doubt; for
it is obvious that the deceased, in throwing himself in the river, acted solely in obedience to the instinct of self-
preservation and was in no sense legally responsible for his own death. As to him it was but the exercise of a
choice between two evils, and any reasonable person under the same circumstances might have done the
same. As was once said by a British court, "If a man creates in another man's mind an immediate sense of
dander which causes such person to try to escape, and in so doing he injuries himself, the person who creates
such a state of mind is responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T. Rep. [N.S.], 701.

In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is cited in the brief of
The Attorney-General, as follows: It appeared that upon a certain occasion an individual, after having inflicted
sundry injuries upon another with a cutting weapon, pointed a shotgun at the injured person and to escape the
discharge the latter had to jump into a river where he perished by drowning. The medical authorities charged
with conducting the autopsy found that only one of the wounds caused by a cut could have resulted in the
death of the injured person, supposing that he had received no succour, and that by throwing himself in the
river he in fact died of asphyxia from submersion. Having been convicted as the author of the homicide, the
accused alleged upon appeal that he was only guilty of the offense of inflicting serious physical injuries, or at
most of frustrated homicide. The Supreme Court, disallowing the appeal, enunciated the following doctrine:
"That even though the death of the injured person should not be considered as the exclusive and necessary
effect of the very grave wound which almost completely severed his axillary artery, occasioning a hemorrhage
impossible to stanch under the circumstances in which that person was placed, nevertheless as the
persistence of the aggression of the accused compelled his adversary, in order to escape the attack, to leap
into the river, an act which the accused forcibly compelled the injured person to do after having inflicted,
among others, a mortal wound upon him and as the aggressor by said attack manifested a determined
resolution to cause the death of the deceased, by depriving him of all possible help and putting him in the very
serious situation narrated in the decision appealed from, the trial court, in qualifying the act prosecuted as
consummated homicide, did not commit any error of law, as the death of the injured person was due to the act
of the accused." (II Hidalgo, Codigo Penal, p. 183.)

The accused must, therefore, be considered the responsible author of the death of Venancio Gargantel, and
he was properly convicted of the offense of homicide. The trial judge appreciated as an attenuating
circumstance the fact that the offender had no intention to commit so great a wrong as that committed. (Par. 3,
art. 9 Penal Code.) In accordance with this finding the judge sentenced the accused to undergo imprisonment
for twelve years and one day, reclusion temporal, to suffer the corresponding accessories, to indemnify the
family of the deceased in the sum of P500, and to pay the costs. Said sentenced is in accordance with law;
and it being understood that the accessories appropriate to the case are those specified in article 59 of the
Penal Code, the same is affirmed, with costs against the appellant. So ordered.

Mapa, C.J., Malcolm, Avanceña and Villamor, JJ., concur.

Separate Opinions

ARAULLO, J., dissenting:

I dissent from the majority opinion in this case.

The only fact that the evidence shows in that Venancio Gargantel, one of those who were in a boat of the
steamerVigan subject to the orders of the accused Calixto Valdez and who at the time was engaged in the
work of raising the anchor of that vessel, which was then lying at the Pasig River, a short distance from the
lighthouse and not far from its mouth at the Manila Bay, upon seeing that the accused was approaching him,
armed with a big knife, and in the attitude of attacking him, threw himself into the water and disappeared from
the surface and had not been seen again. This event took place at noon on November 29, 1919, the boat
being then about 30 or 40 yards from land and about 10 steps from the Vigan, there being two lighters moored
to the shore and at a distance of about 18 or 20 yards from the boat. All of these facts are stated in the
decision itself.

The original information in the present case, charging Calixto Valdez y Quiri with the crime of homicide and
alleging that as a result of his having thrown himself into the river under the circumstances mentioned,
Venancio Gargantel was drowned, was presented on December 8, 1919, that is, nine days afterwards.

There is no evidence whatever that the corpse of Venancio Gargantel had been found or, what is the same
thing, that he had died. From November 28, the day when the event occurred, until December 8, when the
information was filed, it cannot in any manner be maintained that the necessary time had passed for us to
properly conclude, as is alleged in the information, that said Gargantel had died by drowning, as a
consequence of his having thrown himself into the water upon seeing himself threatened and attacked by the
accused. Neither does it appear in the evidence that all the precaution necessary for us to assure ourselves,
as a sure and proven fact, that Venancio Gargantel then died by drowning, were taken; nor is there any
evidence that it would have been impossible for him, by swimming or by any other means to rise to the surface
at a place other than the Pasig River or that where the boat was, from which he threw himself into the river,
and in that manner save himself from death.

From the evidence of the witnesses for the prosecution which is the only evidence in the record, for the
accused di not take the stand, it only appears that Venancio Gargantel, after having jumped from the boat, did
not rise again to the surface. Such was the statement of two of those witnesses who were members of the
boat's crew at the time. Another witness also declared that Gargantel was afterwards not again seen at the
house where he lived in this city, No. 711 San Nicolas Street, where he kept his trunks and some effects, a fact
which caused his mother, who lived in the municipality of Guimbal, in the Province of Iloilo, upon being
informed of it and upon the failure of Venancio to appear in said place, to give special power on the 28th of that
month of December, that is, one month afterwards, to a student, Ignacio Garzon, to get the trunks and effects
of Venancio from said house. Sid Garzon himself testified, upon being asked whether Venancio Gargantel had
returned to the house of his parents since November 29, 1919, that he had no information about it, and another
witness, Pedro Garcia, of the prosecution, stated that he had probably died, because he had not seen
Venancio Gargantel.

Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into the river, upon
being threatened with a knife by the accused, his whereabouts has remained unknown even at the moment of
rendering judgment in this case, or, February 9, 1920, that is, two and one-half months after the occurrence of
the event.

It is stated in the decision that the friend and parents of Gargantel give him up for dead. There is nevertheless
in the record no statement of any parent of Gargantel to that effect; for his mother Maria Gatpolitan, a resident
of the municipality of Guimbal, merely stated in the power of attorney executed in favor of Ignacio Garzon that
the latter should take steps in order that the city fiscal might investigate the death of her son which, according
to information, was caused by another members, of the crew of the steamer Vigan; and none of his friends,
that is, none of the two members of the party in the boat at that time and of the crew of the steamer Vigan, nor
Maximo Gumbog, the owner of the house in which Gargantel lived in this city, nor Pedro Garcia, another
member of the crew of that steamer, and finally, nor Ignacio Garzon himself has stated that he gave up
Gargantel for dead, for the simple reason that this was not possible, for they only knew that he did not again
rise to the surface and was not seen again after having thrown himself into the river from the boat.

For this reason it is stated in the decision that the circumstances therein stated are such that they exclude all
reasonable possibility that Venancio Gargantel could have survived and that the circumstance that never rose
to the surface after having jumped into the river, as witnessed by the persons present, together with the
admitted fact that human life is necessarily asphyxiated under the water, is conclusive that he died. Then, there
is nothing more than a deduction that Gargantel had died based upon those facts and circumstances.

In my opinion this is not sufficient to convict the accused as guilty of homicide, because there is the possibility
that Gargantel had risen to the surface at some place away from the where he threw himself into the river and
had embarked on some other vessel in the same river or out of it in the bay and had gone abroad, or to some
province of these Islands and is found in some municipality thereof, cannot be denied. And this is very
probable inasmuch as it does not appear in the record that the necessary investigation has been made in order
to determined even with only some measure of certainty, not to say beyond all reasonable doubt, that it was
and is impossible to find said person or determined his whereabouts.

Furthermore, there is not even a presumption juris tantum that he had died, for in order that this presumption
may exist, according to section 334 of the Code of Civil Procedure, it is necessary that no information about
him should have been received for seven years from his disappearance upon his throwing himself into the river,
which occurred on November 29, 1919, that is, only about one year and four months ago. And if, in order that a
finding of a civil character in favor of or against some person, may be made, by virtue of that presumption, it is
necessary that seven years should have elapsed without any notice being received of the person whose
whereabouts is unknown, it is not just, reasonable, or legal that the period of one year and four months from
his disappearance or since Venancio Gargantel threw himself into the water should suffice for us to impose
upon the accused Calixto Valdez such a grave penalty as that of twelve years and one day of reclusion
temporal, merely assuming without declaring it, as a proven fact, that Gargantel has died and at the same time
finding said accused to be the author of that death.

Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated July 13, 1882,
cited by the majority opinion is not applicable. The first, is not applicable because in the present case it is not
proved, beyond reasonable doubt, that some damage resulted to Gargantel, just as it cannot be considered as
proved that he had died, or that he had been injured or that he had suffered some injury after having thrown
himself into the river as a result of the threat of the accused. The second is not applicable because the
decision of the Supreme Court of Spain refers to a case, in which the injured party had already been wounded
with a cutting instrument by the accused before throwing himself into the river upon the latter aiming at him
with his gun, it having afterwards been proved upon his being taken out of the river that the wound inflicted
upon him by the accused was mortal; and, consequently, it was declared by said court that, even if the death of
the deceased be considered as not having resulted exclusively and necessarily from that most grave wound,
the persistence of the aggression of the accused compelled his adversary to escape it and threw himself into
the river, by depriving him of all possible help and placing him in the serious situation related in the judgment
appealed from -a case which, as is seen, is very different from that which took place in the present case.

For the reasons above stated, I am of the opinion, with due respect to the opinion of the majority, that the
accused Calixto Valdez y Quiri cannot be found guilty of homicide and should be acquitted.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of
Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual
delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R.
Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu,
was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in
unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him
under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge
and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

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

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the
offense, are not punished except when they are aimed directly to its execution, and therefore they must have
an immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to
declare that such and such overt acts constitute an attempted offense it is necessary that their objective
be known and established, or that said acts be of such nature that they themselves should obviously
disclose the criminal objective necessarily intended, said objective and finality to serve as ground for
the designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not
constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606,
and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this
offense is committed when a private person shall enter the dwelling of another against the latter's will. The
accused may be convicted and sentenced for an attempt to commit this offense in accordance with the
evidence and the following allegation contained in the information: "... the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another for the purpose of entering said
store ... and that the accused did not succeed in entering the store due to the presence of the policeman on
beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached
the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed.
(U.S. vs. Ostrea, 2 Phil., 93; U.S.vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21
Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken
into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch as the
record shows that several final judgments for robbery and theft have been rendered against him — and in his
favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into
consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes
the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if
committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees
lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two
aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum
period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his
preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass
to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and
sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the
costs. Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
 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. Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista
Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-27097 January 17, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO TOLING y ROVERO and JOSE TOLING y ROVERO, defendants-appellants.

Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiroz for plaintiff-appellee.

Santiago F. Alidio as counsel de oficio for defendants-appellants.

AQUINO, J.:

Antonio Toling and Jose Toling, brothers, appealed from the decision of the Court of First Instance of Laguna,
finding them guilty of multiple murder and attempted murder, sentencing them to death and ordering them to
indemnify each set of heirs of (1) Teresita B. Escanan, (2) Antonio B. Mabisa, (3) Isabelo S. Dando, (4) Elena
B. Erminio (5) Modesta R. Brondial (6) Isabel Felices and (7) Teodoro F. Bautista in the sum of P6,000 and to
pay Amanda Mapa the sum of P500 (Criminal Case No. SC-966). The judgment of conviction was based on
the following facts:

Antonio Toling and Jose Toling, twins, both married, are natives of Barrio Nenita which is about eighteen (or
nine) kilometers away from Mondragon, Northern Samar. They are illiterate farmers tilling their own lands.
They were forty-eight years old in 1966. Antonio is one hour older than Jose. Being twins, they look alike very
much. However, Antonio has a distinguishing cut in his ear (44 tsn Jan. 14, 1966).

Antonio's daughter, Leonora, was working in Manila as a laundrywoman since September, 1964. Jose's three
children one girl and two boys, had stayed in Manila also since 1964.

Antonio decided to go to Manila after receiving a letter from Leonora telling him that she would give him money.
To have money for his expenses, Antonio killed a pig and sold the meat to Jose's wife for sixty pesos. Jose
decided to go with Antonio in order to see his children. He was able to raise eighty-five pesos for his expenses.

On January 6, 1965, with a bayong containing their pants and shirts, the twins left Barrio Nenita and took a bus
to Allen. From there, they took a launch to Matnog, Sorsogon. From Matnog, they went to Daraga, Albay on
board an Alatco bus, and from Daraga, they rode on the train, arriving at the Paco railroad station in Manila at
about seven o'clock in the morning of January 8th. It was their first trip to the big city.

At the Paco station, the twins took a jeepney which brought them to Tondo. By means of a letter which Aniano
Espenola a labor-recruiter, had given them, they were able to locate an employment agency where they
learned the address of the Eng Heng Glassware. Antonio's daughter was working in that store. Accompanied
by Juan, an employee of the agency, they proceeded to her employer's establishment. Leonora gave her
father fifty pesos. Sencio Rubis Antonio's grandson, gave him thirty pesos. Antonio placed the eighty pesos in
the right pocket of his pants. It was then noontime.
Jose was not able to find any of his children in the city. The twins returned to the agency where they ate their
lunch at Juan's expense. From the agency, Juan took the twins to the Tutuban railroad station that same day,
January 8th, for their homeward trip.

After buying their tickets, they boarded the night Bicol express train at about five o'clock in the afternoon. The
train left at six o'clock that evening.

The twins were in coach No. 9 which was the third from the rear of the dining car. The coach had one row of
two-passenger seats and another row of three- passenger seats. Each seat faced an opposite seat. An aisle
separated the two rows. The brothers were seated side by side on the fourth three-passenger seat from the
rear, facing the back door. Jose was seated between Antonio, who was near the window, and a three-year old
boy. Beside the boy was a woman breast-feeding her baby who was near the aisle. That woman was Corazon
Bernal. There were more than one hundred twenty passengers in the coach. Some passengers were standing
on the aisle.

Sitting on the third seat and facing the brothers were two men and an old woman who was sleeping with her
head resting on the back of the seat (Exh. 2). on the two-passenger seat across the aisle in line with the seat
where the brothers were sitting, there were seated a fat woman, who was near the window, and one Cipriano
Reganet who was on her left. On the opposite seat were seated a woman, her daughter and Amanda Mapa
with an eight-month old baby. They were in front of Reganet.

Two chico vendors entered the coach when the train stopped at Cabuyao, Laguna. The brothers bought some
chicos which they put aside. The vendors alighted when the train started moving. It was around eight o'clock in
the evening.

Not long after the train had resumed its regular speed, Antonio stood up and with a pair of scissors (Exh. B)
stabbed the man sitting directly in front of him. The victim stood up but soon collapsed on his seat.

For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman who was seated opposite him. She
was not able to get up anymore. 1

Upon seeing what was happening, Amanda Mapa, with her baby, attempted to leave her seat, but before she
could escape Jose stabbed her, hitting her on her right hand with which she was supporting her child (Exh. D-
2). The blade entered the dorsal side and passed through the palm. Fortunately, the child was not injured.
Most of the passengers scurried away for safety but the twins, who had run amuck, stabbed everyone whom
they encountered inside the coach. 2

Among the passengers in the third coach was Constabulary Sergeant Vicente Z. Rayel, a train escort who, on
that occasion, was not on duty. He was taking his wife and children to Calauag, Quezon. He was going to the
dining car to drink coffee when someone informed him that there was a stabbing inside the coach where he
had come from. He immediately proceeded to return to coach No. 9. Upon reaching coach 8, he saw a dead
man sprawled on the floor near the toilet. At a distance of around nine meters, he saw a man on the platform
separating coaches Nos. 8 and 9, holding a knife between the thumb and index finger of his right hand, with its
blade pointed outward. He shouted to the man that he (Rayel) was a Constabularyman and a person in
authority and Rayel ordered him to lay down his knife (Exh. A) upon the count of three, or he would be shot.

Instead of obeying, the man changed his hold on the knife by clutching it between his palm and little finger
(with the blade pointed inward) and, in a suicidal impulse, stabbed himself on his left breast. He slowly sank to
the floor and was prostrate thereon. Near the platform where he had fallen, Rayel saw another man holding a
pair of scissors (Exh. B). He retreated to the steps near the platform when he saw Rayel armed with a pistol.

Rayel learned from his wife that the man sitting opposite her was stabbed to death.

Constabulary Sergeant Vicente Aldea was also in the train. He was in the dining car when he received the
information that there were killings in the third coach. He immediately went there and, while at the rear of the
coach, he met Mrs. Mapa who was wounded. He saw Antonio stabbing with his scissors two women and a
small girl and a woman who was later identified as Teresita B. Escanan (Exh. I to I-3). Antonio was not
wounded. Those victims were prostrate on the seats of the coach and on the aisle.

Aldea shouted at Antonio to surrender but the latter made a thrust at him with the scissors. When Antonio was
about to stab another person, Aldea stood on a seat and repeatedly struck Antonio on the head with the butt of
his pistol, knocking him down. Aldea then jumped and stepped on Antonio's buttocks and wrested the scissors
away from him. Antonio offered resistance despite the blows administered to him.

When the train arrived at the Calamba station, four Constabulary soldiers escorted the twins from the train and
turned them over to the custody of the Calamba police. Sergeant Rayel took down their names. The
bloodstained scissors and knife were turned over to the Constabulary Criminal Investigation Service (CIS).

Some of the victims were found dead in the coach while others were picked up along the railroad tracks
between Cabuyao and Calamba. Those who were still alive were brought to different hospitals for first-aid
treatment. The dead numbering twelve in all were brought to Funeraria Quiogue, the official morgue of the
National Bureau of Investigation (NBI) in Manila, where their cadavers were autopsied (Exh. C to C-11). A
Constabulary photographer took some pictures of the victims (Exh. G to I-2, J-1 and J-2).

Of the twelve persons who perished, eight, whose bodies were found in the train, died from stab wounds,
namely:

(1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon.

(2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.

(3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte.

(4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban, Camarines Norte.

(5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan, Rizal.

(6) Modesta R. Brondial 58, married, housekeeper, Legaspi City.

(7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon City and

(8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City (Exh. C to C-3, C-7, C-8, C-9, C-11, L to
L-2, N to N-2, 0 to 0-2, P to P-2, Q to Q-2, R to R-2 and T to T-2)

Four dead persons were found near the railroad tracks. Apparently, they jumped from the moving train to avoid
being killed. They were:

(1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc, Manila. .

(2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.

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

(4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge Street, Pasay City (Exh. C-4. C-5, C-6, C-10,
J, J-1, J-2, K to K-2, M to M-3 and S to S-2).

Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda Mapa-Dizon, Brigida Sarmiento-Palma,
Cipriano Reganet and Corazon Bernal-Astrolavio (Exh. D to D-5). Mrs. Astrolavio supposedly died later (43 tsn
January 14, 1966).
Mrs. Mapa declared that because of the stab wound inflicted upon her right hand by Jose Toling, she was first
brought to the Calamba Emergency Hospital. Later, she was transferred to the hospital of the Philippine
National Railways at Caloocan City where she was confined for thirteen days free of charge. As a result of her
injury, she was not able to engage in her occupation of selling fish for one month, thereby losing an expected
earning of one hundred fifty pesos. When she ran for safety with her child, she lost clothing materials valued at
three hundred pesos aside from two hundred pesos cash in a paper bag which was lost.

The case was investigated by the Criminal Investigation Service of the Second Constabulary Zone
headquarters at Camp Vicente Lim, Canlubang, Laguna. On January 9, 1965 Constabulary investigators took
down the statements of Mrs. Mapa-Dizon, Cipriano Reganet, Corazon Bernal, Brigida de Sarmiento and
Sergeant Aldea. On that date, the statements of the Toling brothers were taken at the North General Hospital.
Sergeant Rayel also gave a statement.

Antonio Toling told the investigators that while in the train he was stabbed by a person "from the station" who
wanted to get his money. He retaliated by stabbing his assailant. He said that he stabbed somebody "who
might have died and others that might not". He clarified that in the train four persons were asking money from
him. He stabbed one of them. "It was a hold-up".

He revealed that after stabbing the person who wanted to rob him, he stabbed other persons
because, inasmuch as he "was already bound to die", he wanted "to kill everybody" (Exh. X or 8, 49 tsn Sept. 3,
1965).

Jose Toling, in his statement, said that he was wounded because he was stabbed by a person "from
Camarines" who was taking his money. He retaliated by stabbing his assailant with the scissors. He said that
he stabbed two persons who were demanding money from him and who were armed with knives and iron bars.

When Jose Toling was informed that several persons died due to the stabbing, he commented that everybody
was trying "to kill each other" (Exh. I-A).

According to Jose Toling, two persons grabbed the scissors in his pocket and stabbed him in the back with the
scissors and then escaped. Antonio allegedly pulled out the scissors from his back, gave them to him and told
him to avenge himself with the scissors.

On January 20, 1965 a Constabulary sergeant filed against the Toling brothers in the municipal court of
Cabuyao, Laguna a criminal complaint for multiple murder and multiple frustrated murder. Through counsel,
the accused waived the second stage of the preliminary investigation. The case was elevated to the Court of
First Instance of Laguna where the Provincial Fiscal on March 10, 1965 filed against the Toling brothers an
information for multiple murder (nine victims), multiple frustrated murder (six victims) and triple homicide (as to
three persons who died after jumping from the running train to avoid being stabbed).

At the arraignment, the accused, assisted by their counsel de oficio pleaded not guilty. After trial, Judge
Arsenio Nañawa rendered the judgment of conviction already mentioned. The Toling brothers appealed.

In this appeal, appellants' counsel de oficio assails the credibility of the prosecution witnesses, argues that the
appellants acted in self-defense and contends, in the alternative, that their criminal liability was only for two
homicides and for physical injuries.

According to the evidence for the defense (as distinguished from appellants' statements, Exhibits 1 and 8),
when the Toling twins were at the Tutuban Railroad Station in the afternoon of January 8, 1965, Antonio went
to the ticket counter to buy tickets for himself and Jose. To pay for the tickets, he took out his money from the
right pocket of his pants and later put back the remainder in the same pocket. The two brothers noticed that
four men at some distance from them were allegedly observing them, whispering among themselves and
making signs. The twins suspected that the four men harbored evil intentions towards them.
When the twins boarded the train, the four men followed them. They were facing the twins. They were talking
in a low voice. The twins sat on a two passenger seat facing the front door of the coach, the window being on
the right of Antonio and Jose being to his left. Two of the four men, whom they were suspecting of having evil
intentions towards them, sat on the seat facing them, while the other two seated themselves behind them.
Some old women were near them. When the train was already running, the man sitting near the aisle allegedly
stood up, approached Antonio and pointed a balisong knife at his throat while the other man who was sitting
near the window and who was holding also a balisong knife attempted to pick Antonio's right pocket,
threatening him with death if he would not hand over the money. Antonio answered that he would give only
one-half of his money provided the man would not hurt him, adding that his (Antonio's) place was still very far.

When Antonio felt some pain in his throat, he suddenly drew out his hunting knife or small bolo (eight inches
long including the handle) from the back pocket of his pants and stabbed the man with it, causing him to fall to
the floor with his balisong. He also stabbed the man who was picking his pocket. Antonio identified the two
men whom he had stabbed as those shown in the photographs of Antonio B. Mabisa (Exh. L-1 and L-2 or 5-A
and
5-B) and Isabelo S. Dando (Exh. N-1 and N-2 or 7-A and 7-B). While Antonio was stabbing the second man,
another person from behind allegedly stabbed him on the forehead, causing him to lose consciousness and to
fall on the floor (Antonio has two scars on his forehead and a scar on his chest and left forearm, 85, 87 tsn). He
regained consciousness when two Constabulary soldiers raised him. His money was gone.

Seeing his brother in a serious condition, Jose stabbed with the scissors the man who had wounded his
brother. Jose hit the man in the abdomen. Jose was stabbed in the back by somebody. Jose stabbed also that
assailant in the middle part of the abdomen, inflicting a deep wound.

However, Jose did not see what happened to the two men whom he had stabbed because he was already
weak. He fell down and became unconscious. He identified Exhibit A as the knife used by Antonio and Exhibit
B as the scissors which he himself had used. He recovered consciousness when a Constabulary soldier
brought him out of the train.

The brothers presented Doctor Leonardo del Rosario, a physician of the North General Hospital who treated
them during the early hours of January 9, 1965 and who testified that he found the following injuries on Antonio
Toling:

Wound, incised, 1-1/4 inches (sutured), frontal, right; 3-1/2 inches each, mid-frontal (wound on
the forehead) and

Wound, stabbed, 3/4 inch, 1 inch medial to anterior axillary line level of 3rd ICS right,
penetrating thoracic cavity (chest wound (Exh. 11).

and on Jose Toling a stab wound, one inch long on the paravertebral level of the fifth rib on the left, penetrating
the thoracic cavity (Exh. 10). The wound was on the spinal column in line with the armpit or "about one inch
from the midline to the left" (113 tsn). The twins were discharged from the hospital on January 17th.

The trial court, in its endeavor to ascertain the motive for the twins' rampageous behavior, which resulted in the
macabre deaths of several innocent persons, made the following observations:

What could be the reason or motive that actuated the accused to run amuck? It appears that the
accused travelled long over land and sea spending their hard earned money and suffering
privations, even to the extent of foregoing their breakfast, only to receive as recompense with
respect to Antonio the meager sum of P50 from his daughter and P30 from his grandson and
with respect to Jose to receive nothing at all from any of his three children whom he could not
locate in Manila.

It also appears that the accused, who are twins, are queerly alike, a fact which could easily
invite some people to stare or gaze at them and wonder at their very close resemblance. Like
 some persons who easily get angry when stared at, however, the accused, when stared at by
the persons in front of them, immediately suspected them as having evil intention towards them
(accused).

To the mind of the Court, therefore, it is despondency on the part of the accused coupled with
their unfounded suspicion of evil intention on the part of those who happened to stare at them
that broke the limit of their self-control and actuated them to run amuck.

We surmise that to the captive spectators in coach No. 9 the spectacle of middle-aged rustic twins, whom, in
the limited space of the coach, their co-passengers had no choice but to notice and gaze at, was a novelty.
Through some telepathic or extra-sensory perception the twins must have sensed that their co-passengers
were talking about them in whispers and making depreciatory remarks or jokes about their humble persons. In
their parochial minds, they might have entertained the notion or suspicion that their male companions, taking
advantage of their ignorance and naivete, might victimize them by stealing their little money. Hence, they
became hostile to their co-passengers. Their pent-up hostility erupted into violence and murderous fury.

A painstaking examination of the evidence leads to the conclusion that the trial court and the prosecution
witnesses confounded one twin for the other. Such a confusion was unavoidable because the twins, according
to a Constabulary investigator, are "very identical". Thus, on the witness stand CIS Sergeants Alfredo C.
Orbase and Liberato Tamundong after pointing to the twins, refused to take the risk of identifying who was
Antonio and who was Jose. They confessed that they might be mistaken in making such a specific
identification (28 tsn September 3, 1965; 32 tsn November 5, 1965).

In our opinion, to ascertain who is Antonio and who is Jose, the reliable guides would be their sworn
statements (Exh. 1 and 8), executed one day after the killing, their own testimonies and the medical certificates
(Exh. 10 and 11). Those parts of the evidence reveal that the one who was armed with the knife was Antonio
and the one who was armed with the scissors was Jose. The prosecution witnesses and the trial court
assumed that Antonio was armed with the scissors (Exh. B) and Jose was armed with the knife (Exh. A). That
assumption is erroneous.

In his statement and testimony, Antonio declared that he was armed with a knife, while Jose declared that he
was armed with the scissors which Antonio had purchased at the Tutuban station, before he boarded the train
and which he gave to Jose because the latter is a barber whose old pair of scissors was already rusty. As thus
clarified, the person whom Sergeant Rayel espied as having attempted to commit suicide on the platform of the
train by stabbing himself on the chest would be Antonio (not Jose). That conclusion is confirmed by the
medical certificate, Exhibit 11, wherein it is attested that Antonio had a wound in the chest. And the person
whom Sergeant Aldea subdued after the former had stabbed several persons with a pair of scissors (not with a
knife) was Jose and not Antonio. That fact is contained in his statement of January 9, 1965 (p. 9, Record).

The mistake of the prosecution witnesses in taking Antonio for Jose and vice-versa does not detract from their
credibility. The controlling fact is that those witnesses confirmed the admission of the twins that they stabbed
several passengers.

Appellants' counsel based his arguments on the summaries of the evidence found in the trial court's decision.
He argues that the testimonies of Sergeants Rayel and Aldea are contradictory but he does not particularize on
the supposed contradictions.

The testimonies of the two witnesses do not cancel each other. The main point of Rayel's testimony is that he
saw one of the twins stabbing himself in the chest and apparently trying to commit suicide. Aldea's testimony is
that he knocked down the other twin, disabled him and prevented him from committing other killings.

It may be admitted that Rayel's testimony that Aldea took the knife of Jose Toling was not corroborated by
Aldea. Neither did Aldea testify that Antonio was near Jose on the platform of the train. Those discrepancies do
not render Rayel and Aldea unworthy of belief. They signify that Aldea and Rayel did not give rehearsed
testimonies or did not compare notes.
Where, as in this case, the events transpired in rapid succession in the coach of the train and it was nighttime,
it is not surprising that Rayel and Aldea would not give identical testimonies (See 6 Moran's Comments on the
Rules of Court, 1970 Ed. 139-140; People vs. Resayaga, L-23234, December 26, 1963, 54 SCRA 350). There
is no doubt that Aldea and Rayel witnessed some of the acts of the twins but they did not observe the same
events and their powers of perception and recollection are not the same.

Appellants' counsel assails the testimony of Mrs. Mapa. He contends that no one corroborated her testimony
that one of the twins stabbed a man and a sleeping woman sitting on the seat opposite the seat occupied by
the twins. The truth is that Mrs. Mapa's testimony was confirmed by the necropsy reports and by the twins
themselves who admitted that they stabbed some persons.

On the other hand, the defense failed to prove that persons, other than the twins, could have inflicted the stab
wounds. There is no doubt as to the corpus delicti. And there can be no doubt that the twins, from their own
admissions (Exh. 1 and 8) and their testimonies, not to mention the testimonies of Rayel, Aldea, Mrs. Mapa
and the CIS investigators, were the authors of the killings.

Apparently, because there was no doubt on the twins' culpability, since they were caught in flagrante
delicto the CIS investigators did not bother to get the statements of the other passengers in Coach No. 9. It is
probable that no one actually saw the acts of the twins from beginning to end because everyone in Coach No.
9 was trying to leave it in order to save his life. The ensuing commotion and confusion prevented the
passengers from having a full personal knowledge of how the twins consummated all the killings.

On the other hand, the twins' theory of self-defense is highly incredible. In that crowded coach No. 9, which
was lighted, it was improbable that two or more persons could have held up the twins without being readily
perceived by the other passengers. The twins would have made an outcry had there really been an attempt to
rob them. The injuries, which they sustained, could be attributed to the blows which the other passengers
inflicted on them to stop their murderous rampage.

Appellants' view is that they should be held liable only for two homicides, because they admittedly killed
Antonio B. Mabisa and Isabelo S. Dando, and for physical injuries because they did not deny that Jose Toling
stabbed Mrs. Mapa. We have to reject that view. Confronted as we are with the grave task of passing judgment
on the aberrant behavior of two yokels from the Samar hinterland who reached manhood without coming into
contact with the mainstream of civilization in urban areas, we exercised utmost care and solicitude in reviewing
the evidence. We are convinced that the record conclusively establishes appellants' responsibility for the eight
killings.

To the seven dead persons whose heirs should be indemnified, according to the trial court, because they died
due to stab wounds, should be added the name of Susana C. Hernandez (Exh. P, P-1 and P-2). The omission
of her name in judgment was probably due to inadvertence. According to the necropsy reports, four persons,
namely, Shirley A. Valenciano, Salvador A. Maqueda, Miguel C. Oriarte and Timoteo U. Dimaano, died due to
multiple traumatic injuries consisting of abrasions, contusions, lacerations and fractures on the head, body and
extremities (Exh. J to J-2, K to K-2, M to M-2 and S to S-2).

The conjecture is that they jumped from the moving tracing to avoid being killed but in so doing they met their
untimely and horrible deaths. The trial court did not adjudge them as victims whose heirs should be
indemnified. As to three of them, the information charges that the accused committed homicide. The trial court
dismissed that charge for lack of evidence.

No one testified that those four victims jumped from the train. Had the necropsy reports been reinforced by
testimony showing that the proximate cause of their deaths was the violent and murderous conduct of the twins,
then the latter would be criminally responsible for their deaths.

Article 4 of the Revised Penal Code provides that "criminal liability shall be incurred by any person committing
a felony (delito) although the wrongful act done be different from that which he intended". The presumption is
that "a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).
The rule is that "if a man creates in another man's mind an immediate sense of danger which causes such
person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is
responsible for the injuries which result" (Reg. vs. Halliday 61 L. T. Rep. [N.S.] 701, cited in U.S. vs. Valdez, 41
Phil. 4911, 500).

Following that rule, is was held that "if a person against whom a criminal assault is directed reasonably
believes himself to be in danger of death or great bodily harm and in order to escape jumps into the water,
impelled by the instinct of self-preservation, the assailant is responsible for homicide in case death results by
drowning" (Syllabus, U.S. vs. Valdez, supra, See People vs. Buhay, 79 Phil. 371).

The absence of eyewitness-testimony as to the jumping from the train of the four victims already named
precludes the imputation of criminal responsibility to the appellants for the ghastly deaths of the said victims.

The same observation applies to the injuries suffered by the other victims. The charge of multiple frustrated
murder based on the injuries suffered by Cipriano Pantoja, Dinna Nosal, Corazon Bernal and Brigida
Sarmiento (Exh. D, D-3 to D-5) was dismissed by the trial court for lack of evidence. Unlike Mrs. Mapa, the
offended parties involved did not testify on the injuries inflicted on them.

The eight killings and the attempted killing should be treated as separate crimes of murder and attempted
murder qualified be treachery (alevosia) (Art. 14[16], Revised Penal Code). The unexpected, surprise assaults
perpetrated by the twins upon their co-passengers, who did not anticipate that the twins would act
likejuramentados and who were unable to defend themselves (even if some of them might have had weapons
on their persons) was a mode of execution that insured the consummation of the twins' diabolical objective to
butcher their co-passengers. The conduct of the twins evinced conspiracy and community of design.

The eight killings and the attempted murder were perpetrated by means of different acts. Hence, they cannot
be regarded as constituting a complex crime under article 48 of the Revised Penal Code which refers to cases
where "a single act constitutes two or more grave felonies, or when an offense is a necessary means for
committing the other".

As noted by Cuello Calon, the so-called "concurso formal o ideal de delitos reviste dos formas: (a) cuando un
solo hecho constituye dos o mas delitos (el llamado delito compuesto); (b) cuando uno de ellos sea medio
necesario para cometer otro (el llamado delito complejo)." (1 Derecho Penal, 12th Ed. 650).

On the other hand, "en al concurso real de delitos", the rule, when there is "acumulacion material de las
penas", is that "si son varios los resultados, si son varias las acciones, esta conforme con la logica y con la
justicia que el agente soporte la carga de cada uno de los delitos" (Ibid, p. 652, People vs. Mori, L-23511,
January 31, 1974, 55 SCRA 382, 403).

The twins are liable for eight (8) murders and one attempted murder. (See People vs. Salazar, 105 Phil. 1058
where the accused Moro, who ran amuck, killed sixteen persons and wounded others, was convicted of
sixteen separate murders, one frustrated murder and two attempted murders; People vs. Mortero, 108 Phil. 31,
the Panampunan massacre case, where six defendants were convicted of fourteen separate murders; People
vs. Remollino, 109 Phil. 607, where a person who fired successively at six victims was convicted of six
separate homicides; U. S. Beecham, 15 Phil. 272, involving four murders; People vs. Macaso, 85 Phil. 819,
828, involving eleven murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs. Balaba, 37 Phil. 260, 271. Contra:
People vs. Cabrera, 43 Phil. 82, 102-103; People vs. Floresca, 99 Phil. 1044; People vs. Sakam, 61 Phil. 27;
People vs. Lawas, 97 Phil. 975; People vs. Manantan, 94 Phil. 831; People vs. Umali, 96 Phil. 185; People vs.
Cu Unjiengi, 61 Phil. 236; People vs. Penas, 66 Phil. 682; People vs. De Leon, 49 Phil. 437, where the crimes
committed by means of separate acts were held to be complex on the theory that they were the product of a
single criminal impulse or intent).

As no generic mitigating and aggravating circumstances were proven in this case, the penalty for murder
should be imposed in its medium period or reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code. The
death penalty imposed by the trial court was not warranted.
A separate penalty for attempted murder should be imposed on the appellants. No modifying circumstances
can be appreciated in the attempted murder case.

WHEREFORE, the trial court's judgment is modified by setting aside the death sentence. Defendants-
appellants Antonio Toling and Jose Toling are found guilty, as co-principals, of eight (8) separate murders and
one attempted murder. Each one of them is sentenced to eight (8) reclusion perpetuas for the eight murders
and to an indeterminate penalty of one (1) year of prision correccional as minimum to six (6) years and one (1)
day ofprision mayor as maximum for the attempted murder and to pay solidarily an indemnity of P12,000 to
each set of heirs of the seven victims named in the dispositive part of the trial court's decision and of the eight
victim, Susana C. Hernandez, or a total indemnity of P96,000, and an indemnity of P500 to Amanda Mapa. In
the service of the penalties, the forty-year limit fixed in the penultimate paragraph of article 70 of the Revised
Penal Code should be observed. Costs against the appellants.

SO ORDERED.

Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Antonio, Esguerra, Fernandez and Muñoz Palma, JJ.,
concur.

Makasiar, J., took no part.

Footnotes

1 That initial stabbing was described by Corazon Bernal-Astrolavio in her statement dated
January 9, 1965 in this manner (page 16 of the Record):

"4. T: May nasaksihan ba kayong hindi pangkaraniwang pangyayari na naganap nang gabing
iyon at kung mayroon maaari ba ninyong maisalaysay sa maikli ngunit maliwanag na
pananalita?

"S: Mayroon po. Nakaupo ako nuon sa bandang hulihan nang tren. Nagpapasuso ako nuon
nang aking anak nang biglang nagkagulo. Iyong katabi kong lalaki na may katandaan na ay
biglang sinaksak iyong kaharap kong babae sa upuan. Nabuwal iyong kanyang sinaksak, at ako
naman ay nagtatakbo na dala ko iyong dalawa kong anak. Sumiksik kami doon sa may kubeta
nang tren na nang mangyari iyon ay lumalakad. Hindi ko alam na iyong aking kanan sintido ay
nagdurugo. Nang tahimik na ay dinala kami sa ospital sa Calamba at doon ay ginamot ako roon.

"5. T: Sinabi ninyo na nang biglang magkagulo samantalang lumalakad ang tren ay iyong katabi
ninyong lalaki na may katandaan na ay biglang sinaksak iyong kaharap ninyong babae sa
upuan, nakita ba ninyo kung ano ang ipinanaksak nang lalaking ito?

"S: Hindi ko na po napansin dahil sa aking takot."

2 Mrs. Mapa's statement (Exh. E) reads:

"4. T: Sino po ang sumaksak sa inyo?

S: Iyon pong lalaking mataas na payat na bisaya. Hindi ko po kilala pero kung makikita ko ay
makikilala ko. Ito pong sumaksak sa akin na ito ay dinala rin sa ospital sa Calamba, Laguna.
Nauna po lamang ako at nakita kong siya ang isinunod na may saksak din.

5. T: Bakit naman ninyo namukhaan itong sumaksak sa inyong ito?

S: Kahelera po namin iyan sa upuan.

6. T: Maaari po ba ninyong isalaysay sa maikli ngunit maliwanag na pananalita ang buong
pangyayaring inyong nasaksihan?

S: Opo. Nagpapasuso ako nuon nang aking anak, nang walang ano-ano ay nakita ko na
lamang iyong nakasaksak sa akin na biglang tumayo sa kanyang kinauupuan at biglang
sinaksak iyong kaharap niyang sa upuan na babae na natutulog. Itong katabi nang nanaksak na
ito ay tumayo rin at nanaksak din nang nanaksak at ang lahat nang makitang tao ay hinahabol
at sinasaksak. Bata, matanda ay sinasaksak nang dalawang ito at madaanan. Nang bigla kong
tayo ay natamaan iyong aking kanang kamay nang kabig niya nang saksak. Nagtuloy ako sa
kubeta sa tren at doon ako sumiksik. Nang payapa na ang lahat ay dinala ako sa Calamba sa
ospital doon, at ako'y ginamot nang pangunang lunas.

7. T: Itong katabi na lalaking sinasabi ninyong nanaksak din ay kung makita ninyong muli ay
makikilala pa ninyo?

S: Makikilala ko rin po. Magkahawig po sila nang nakasaksak sa akin."

The statement of Cipriano Reganet who was wounded (Exh. D-4), in a way corroborates Mrs.
Mapa's statement. Reganet's statement reads in part as follows (Exh. F);

"3. T: Maaari po ba ninyong masabi kung bakit kayo naririto ngayon sa PNR Hospital dito sa
Caloocan City?

S: Dahil po sa mga saksak na tinamo ko nang magkaroon nang gulo sa loob nang tren
kagabing humigit kumulang sa mga alas nueve (9:00 P.M.) petcha 8 nitong Enero 1965.

4. T: Sino po ang sumaksak sa inyo kung inyong nakikilala?

S: Hindi ko po alam ang pangalan pero mamumukhaan ko kung ihaharap sa akin. Ang
sumaksak po sa akin ay iyong kasama ko sa ambulancia na nagdala saamin dito sa ospital na
ito.

5. T: Bakit naman ninyo natiyak na ang sumaksak sa inyo ay iyong kasama ninyo sa
ambulancia na nagdala sa inyo sa ospital na ito?

S: Malapit po lamang ang kanyang inuupuan sa aking inuupuan sa loob nang tren kaya
namukhaan ko siya.

6. T: Ilan beses kayong sinaksak nang taong ito?

S: Dalawang beses po.

7. T: Saan-saan panig nang katawan kayo nagtamo nang saksak?

S: Sa aking noo at sa kanang kamay nang sangahin ko ang kanyang pangalawang saksak.

8. T: Bakit po naman kayo sinaksak nang taong ito?

S: Hindi ko po alam. Primero nanaksak siya sa kanyang kaharap sa upuan at saksak nang
saksak sa mga taong kanyang makita.

9. T: Ilan ang nakita ninyong nananaksak?

S: Dalawa pong magkatabi na magkahawig ang mukha.

 10. T: Nang mangyari po ba ito ay tumatakbo ang tren?

S: Tumatakbo po.

11. T: Papaano kayo nakaligtas?

S: Tumakbo po ako at kumabit sa rampa at nang medyo tahimik na balak kong magbalik sa
loob nang tren. Nakita ko na maraming sugatan at sa wari ko ay patay na. Sa mga nakita ko sa
loob nang tren ay iyong sumaksak sa akin, na nakasandal at nang makita ako ay tinanganan
iyong kanyang panaksak at tinangka akong habulin. Tumakbo ako at tumalon sa lupa. Sa
pagtalon kong iyon ay napinsala ang aking kaliwang balikat.

12. T: Ano po ang ipinanaksak sa inyo?

S: Para pong punyal na ang haba ay kumulang humigit sa isang dangkal".

Mrs. Brigida Sarmiento-Palma, who was also wounded (Exh. D-3) executed a statement which
reads in part as follows (page 20, Record):

"4. T: Maaari po ba ninyong ysay sa maikli ngunit maliwanag na pananalita ang buong
pangyayari?

S: Opo. Nakaupo po ako nuon kaharap papuntang Bicol. Walang ano-ano ay bigla na lamang
nakita ko na may sinaksak at pagkatapos nakita ko na lahat nang makita babae o lalaki at
sinaksak. Nang ako'y tumayo para tumakbo ay nilapitan ako at ako naman ang sinaksak.
Sumigaw ako at humingi nang saklolo at nakiusap sa isang tao na tagpan nang tualya iyong
tinamo kong saksak sa kaliwang puson na tumama sa buto. Makalipas ang ilang sandali ay
dinala na ako sa ospital.

5. T: Nakikilala ba ninyo iyong sumaksak sa inyo?

S: Kilala ko po sa mukha at kasama ko pa kahapon nang dalhin ako sa ospital na ito.

6. T: Ilan po itong nakita ninyong nanaksak?

S: Dalawa po sila na magkahawig ang mukha.

 
 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.

Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.

 
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-36858 June 20, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MACARIO A. ULEP, accused-appellant.

The Solicitor General for plaintiff-appellee.

Castor Naval for accused-appellant.

GANCAYCO, J.:

A man must love his wife. He must not lift a finger to hurt her. Indeed he must be her protector. When against
this unwritten rule he beats her, he ceases to be a man. He becomes a beast. And the law imposes the
supreme penalty when in the process he kills her. It is parricide pure and simple.

This is what Macario A. Ulep, was convicted of by the Court of First Instance of Ilocos Norte, Second Judicial
District. He was sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the
deceased in the amount of P12,000.00 and to pay the costs in a decision of March 20, 1973.

The facts are undisputed. On May 21, 1970, at nine o'clock in the evening, in San Nicolas, Ilocos Norte, one
Asuncion Pablo Ulep died as a result of physical injuries inflicted upon her on that very day by her husband,
accused Macario Ulep. The following day, the Chief of Police of San Nicolas, Ilocos Norte received a report of
the said death of Asuncion Pablo who allegedly died of a heart attack. The Chief of Police and the Rural Health
Officer went to the house of the deceased and there they saw the body on a bamboo bed surrounded by
relatives, friends, and the husband of the deceased, Macario. The Chief of Police suggested that an autopsy
be conducted but the husband refused to allow the same. However, the daughter of the deceased by a
previous marriage asked for a day or two to decide on her preference.

At the behest of the daughter, the request for an autopsy was made shortly before the burial. Accordingly, the
police chief and Dr. Eliseo Bonoan, a physician, caught up with the funeral Procession at the Catholic
cemetery and thereupon conducted an autopsy on the deceased.

The autopsy reports read as follows:

POSTMORTEM EXAMINATION

Name: ASUNCION PABLO ULEP

Age: 42

Nationality: Filipino

Address: No. 24, San Nicolas, Ilocos Norte

Date: May 25, 1970

 PATHOLOGICAL DIAGNOSIS

SKIN:

A rectangular area of about 1" x 3" bluish black in color was noted on the upper
half, anterior aspect of the arm, left.

SKELETAL SYSTEM:

Complete fracture of the 4th, 5th, 6th and 7th ribs, left. The 4th and 5th ribs
fractured along the midolavicular line, left. The 6th and 7th ribs fractured along
the anterior auxillary line, left. Presence of extravascated blood and injuries of
the surrounding tissues of the broken ribs areas, left.

Complete fracture of the 3rd and 4th ribs at the juncture of the rib and external
cartillages with concomitant injury to its sounding tissues and extravascated
blood, right side.

THORACIC CAVITY:

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

Pleura lacerated at the points of fractures.

CARDIOVASCULAR SYSTEM:

Heart with small amount of clotted blood. Coronary vessels congested. The big
blood vessels contained small amount of clotted blood.

ABDOMINAL CAVITY:

Presence of about 500 cc. of serous fluid within the cavity.

DIGESTIVE SYSTEM:

Apparently normal

CENTRAL NERVOUS SYSTEM:

The meningeal vessels were congested.

CAUSE OF DEATH:

CARDIAC ARREST

PRIMARY SHOCK.

(Exh. D, p. 16, rec.). 1

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

Ulep narrated that this elbowing and attack took place at their home at 5:30 in the afternoon. She vomitted and
then went to bed, The accused then left for the fields and returned at around 9:00 in the evening and found his
wife dead on her bed. He reported this death to their barrio captain.

Despite these statements, (Exhibits "A" and "B") admitting his guilt, Ulep retracted his statement in court by
narrating that more than a year before that, and while his wife went to have their palay milled, their bullcart
loaded with sacks of rice turned upside down and pinned his wife on her breast. With the pain in her chest, she
was treated by a country quack doctor or "arbularyo."

The accused took exception to his conviction when he raised the following errors:

THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH OF ASUNCION
PABLO WAS DUE TO THE ELBOW BLOWS BY THE ACCUSED-APPELLANT ON HER
BREAST, AS ADMIRED BY HIM IN HIS AFFIDAVITS, EXHIBIT "A" AND EXHIBIT "A-1,"
ENGLISH TRANSLATION, WHEN SUCH ADMISSION IS BUT A MERE BELIEF ON HIS PART.

II

THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF DEATH OF SAID
ASUNCION PABLO WAS DUE TO A LONG STANDING PROCESS OR CONDITION IN HER
BODY SYSTEM, AS TESTIFIED TO BY DR. PEDRO BLANCO FOR THE DEFENSE.

III

THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM OF THE CRIME
OF PARRICIDE.

Our primary concern is to determine the cause of death of Asuncion Pablo, the wife, of the accused. Was her
death a result of cardiac arrest and primary shock due to fractured ribs? The appellant alleges that the gradual
weakening of the heart due to a long standing illness of the body system caused the cardiac arrest which
claimed the life of Asuncion Pablo.

The post-mortem report on the deceased was prepared by Dr. Eliseo V. Bonoan who conducted an autopsy at
the behest of a daughter of tile deceased by a previous marriage. The husband who previously denied
permission to conduct an autopsy was present when the autopsy was performed shortly before the body was
buried at the cemetery of San Nicolas, Ilocos Norte. In the necropsy report of Dr. Bonoan, the cause of death
was manifestly due to cardiac arrest and primary shock. We agree and see no fault in this finding made in the
necropsy report of Dr. Bonoan.

The defense took exception to Dr. Bonoan's testimony that the fractures in the chest could have been caused
by blows or physical pressure. Could such injuries not have been inflicted by elbow blows when the victim was
standing or by knee or feet blows when the victim was lying on her back or was sitting with her back against
the wall?

While the accused admitted that he delivered several elbow blows on the chest of his wife immediately before
her death and the prosecution attributed these blows as the proximate cause of the cardiac arrest and primary
shock which resulted in the wife's death, the defense assails this theory of the prosecution in the following
manner:
 First, there were no contusions on the chest of the victim. This indicates that the elbow blows
were not of sufficient force to fracture the ribs. This is so because a fracture necessarily results
in the extravasation of blood in the fractured area and it is the extravasated blood that causes
the swelling or contusion. 2 Dr. Blanco attributes the absence of swelling or contusion on the
chest, where the fractures were found, to the fact that the fracture conditions Were of long
standing; that is, some repairs has happened and that sufficient time have elapsed for the
swelling to disappear (t.s.n., p. 180).

Second, even on the theory that fractures of the ribs as that found by Dr. Bonoan were present,
the same could have not caused cardiac arrest and primary shock. This is so because only
extravasated blood was present around the immediate area of the fractures, This means that
the fractures were not depressed or that the fractured ends did not cave-in, so as to injure the
heart and impede its functions to cause cardiac arrest. The claim of Dr. Bonoan that the chest is
pliant and is like an accordion which can be compressed is puerile to say the least. Even so, the
elbow blows of the accused could not have caused a compression of the chest wall, no matter
how pliant it could be. And even on the theory that the fractures were caused by stamping the
foot on a piece of wood placed on the chest, while the victim was lying on her back, still the
fractures could not have injured the heart or impede its functions to cause cardiac arrest,
because the fractures, were not depressed fractures or cave-in fractures. The fractures merely
caused the extravasation of blood within the fractured areas. And neither would the fractures
cause primary shock because they were merely complete fractures; which means a mere
breakage that would not cause the stoppage of the heart, because it does not tend to compress
the heart. 3

And third, although the pleura or thoracic cavity was lacerated at the points of fracture, the same
could not have caused cardiac arrest or primary shock because the lacerations were limited to
the pleura. The points of fracture did not cave-in or were not depressed and they did not injure
or impede the heart to cause cardiac arrest. Neither did the lacerations of the pleura cause
primary shock because blood did not spill into the pleura, which indicates that the hemorrhage
was nil. This is so because the serous fluid in the pleura -as not reddish.

On the contrary, the evidence of the prosecution shows that the deceased died of cardiac arrest
because of the weakening of the heart due to a long standing process or condition in her body
system. Thus the theory of the defense is strengthened by the very evidence of the
prosecution. 4

Furthermore, both sides in this case took issue to the presence of 200 cc. of serous fluid in the pleura. The
appellant claims that it is not normal whereas the prosecution says that the pleura normally contains 100 to
200 cc. of serous fluid and that this is normal. Anyway both agree that there should be enough serous fluid to
lubricate the tissues.

The presence of 500 cc. of serous fluid in the abdominal cavity which, according to Dr. Blanco, the physician,
witness for the appellant, may be due to the chronic condition of the kidney like nephritis and edema or the
hardening of the liver or a long progressively weakening of the heart. 5 Dr. Bonoan did not concur in this view
when he said that the fluid was rather increased as a result of the diffusion of the medicine used in the
embalming. 6 We find cogent basis in the explanation given by Dr. Bonoan.

Another point raised in the necropsy report pertains to the presence of clotted blood in the heart and blood
vessels as well as the congestion of the meningeal vessels. The appellant bares that this is a sign of the
hardening of the heart. Dr. Bonoan of the prosecution disclosed that there were no signs of circulatory
weakening and that blood clots were not found adherent to the heart and such being the condition there could
be no abnormality and thus he further declares that such clots are normally found in the heart of a dead person
or in any part of the circulatory system. 7
There is an admission by Dr. Blanco, the appellant's witness, that he has not "attended a case of fractured
ribs" 8and that he explains cardiac failure as a "failing of the heart" and his further concept is that it is "the
stopping of the heart." He says that such stoppage could be due to trauma, such as a fracture of the ribs. 9

A resume of the evidence presented by the parties establishes the fact of death of Asuncion Pablo on May 21,
1970. She was legally married to Macario Ulep, the appellant herein. The death, established in two affidavits,
Exhibits "A" and "B," was caused by said accused. In these affidavits, the appellant admitted that he elbowed
and attacked his wife. This attack caused the complete fracture of the 4th, 5th, 6th and 7th ribs on her left
chest and the 3rd, and 4th ribs, right chest of Asuncion Pablo on the same evening of May 21, 1970. The trial
judge observed: "There was never any attempt on the part of the accused to repudiate the sworn statements
wherein he admitted that the cause of death of his wife was his having elbowed her many times on her
breast." 10

Having realized the gravity of his act, the appellant presented a witness to prove that sometime in February or
March, 1969 his wife was pinned down by a sack of rice and the side portion of a bullcart and was attended to
by a town quack doctor called an arbularyo. This witness said that two (2) ribs on each side of the chest were
fractured, without stating which particular ribs were so affected.

From all these observations, findings, and an incisive study of the necropsy report, the cause of death of the
wife-victim in this case is cardiac arrest and primary shock caused by the strong pressure applied on the upper
front chest bone. This happens when one steps, kneels or presses the body of a victim against a wall. The
man-size blows coming from the elbow of the aggressor upon a thin-framed woman can only bring about fatal
results.

We find relevance in Wharton and Stilles' findings in their book, Medical Jurisprudence under the title of
"SHOCK," to wit:

Sec. 225. Shock. — Death may also be due to the shock associated with the injury. The
possibility of a person dying from the shock attendant upon an injury which, by itself appears to
be unimportant is attested by experience. No satisfactory explanation of the cause of the shock
seems to have been found, though it is due in some way to the upsetting of the nervous
equilibrium of the body. Shock from an injury may be fatal even when the blow leaves no trace
behind it; as, for instance, when a person receives a violent blow upon the pit of the stomach, or
behind the ear, or to the larynx. ... In the case of Reg. v. Slane, et al., 11 the deceased had
received injuries to the abdomen by kick and blows, but there were no marks of bruises present,
or anything to show the cause of death. Death however, had followed twenty minutes after the
maltreatment and was evidently due to the shock. The prisoners were convicted of murder. 12

We have previously stated that:

Even if the victim is suffering from an internal ailment, liver or heart disease, or tuberculosis, if
the blow delivered by the accused —

(a) is the efficient cause of death; or

(b) accelerated his death; or

(c) is the proximate cause of death; then there is criminal liability. 13

Apropos to all these is that time-respected doctrine: "He who is the cause of the cause is the cause of the evil
caused." This is the rationale in Article 4 of the Revised Penal Code which provides that "criminal liability shall
be incurred by a person committing a felony (delito) although the wrongful act done be different from that which
he intended."
Again, We elucidated that: even though a blow with the fist or a kick does not cause any external wound, it
may easily produce inflammation of the spleen and peritonitis and cause death, and even though the victim
may have been previously affected by some internal malady, yet if the blow with the fist or foot accelerated
death, he who caused such acceleration is responsible for the death as the result of an injury willfully and
unlawfully inflicted. 14

We are, therefore, convinced that there is no fundamental disagreement between the two medical witnesses
as to the cause of the victim's death and that cardiac arrest and primary shock took away the life of the victim,
Asuncion Pablo.

There is that clear and categorical showing that on the appellant fell the blame for these in human acts on his
wife. He should answer for her tragic death.

The indemnity to the heirs of his deceased wife should be increased to P30,000.00.

WHEREFORE, with the above modification as to indemnity, the judgment appealed from is hereby AFFIRMED
in all other respects.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 Page 56, Rollo.

2 Page 36, Rollo; page 7, Appellant's Brief.

3 Page 36, Rollo; page 8, Appellant's Brief.

4 Page 36, Rollo; page 9, Appellant's Brief.

5 Page 36, Rollo; page 11, Appellant's Brief.

6 Page 56, Rollo; page 15, Appellee's Brief.

7 Page 56, Rollo; page 16, Appellee's Brief.

8 Ibid.

9 Page 56, Rollo: page 16, Appellee's Brief.

10 Page 13, Rollo; page 13, Decision of the Court of First Instance.

11 Citing Derham Wint. Ass. 1872.

12 Wharton & Stille's Medical Jurisprudence, 5th Ed.

13 People vs. Ilustre, 54 Phil. 594.

14 United States v. Rosalinda Rodriguez, 23 Phil. 22.

 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.

Feliciano, Regalado and Nocon, JJ., concur.

Narvasa, C.J., is on leave.

Footnotes

1 People vs. Intod, C.A-G.R. No. 09205, August 14, 1991; Justice Fidel P.
Purisima, Ponente: Justices Eduardo R. Bengzon and Salome A. Montoya, concurring.

2 TSN, p. 4, July 24, 1986.

3 Records, p. 65.

4 Guevarra, Commentaries on the Revised Penal Code 15 (4th ed., 1946).

5 Albert, Ibid.

6 Albert, Ibid.

7 Albert, Ibid.

8 Albert, Ibid.

9 Grogorio and Feria, Comments on the Revised Penal Code 76 (Vol. I, 1st ed. 1958).

10 Reyes, The revised Penal Code, 90 (Vol. I, 11th ed., 1977).

11 Reyes, Ibid.

12 Reyes, Ibid.

13 U.S. vs. Berrigan, 482 F. 2nd. 171 (1973).

14 U.S. vs. Berrigan, Ibid.

15 Aquino, The Revised Penal Code, (Vol. I, 1987).

16 U.S. vs. Berrigan, supra, p. 13.

17 U.S. vs. Berrigan, Ibid.

18 21 L.R.A. 626 (1898).

19 21 L.R.A. N.S. 898 (1908).

20 17 S.W. 145 (1888).

21 71 S.W. 175 (1902).

22 U.S. vs. HENG AWKAK ROMAN, 39 L. Ed. 2d. 874 (1974).

23 565 F. Supp. 1416 (1983).

24 Supra, n. 13.

 
 THIRD DIVISION

[G.R. No. 116736. July 24, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE, MANUEL
GARCIA y RIVERA and JOHN DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL
GARCIA y RIVERA, accused-appellants.

DECISION
PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act
even where the resulting crime is more serious than that intended. Hence, an accused who originally intended
to conceal and to bury what he thought was the lifeless body of the victim can be held liable as a principal, not
simply as an accessory, where it is proven that the said victim was actually alive but subsequently died as a
direct result of such concealment and burial. Nonetheless, in the present case, Appellant Garcia can not be
held liable as a principal because the prosecution failed to allege such death through drowning in the
Information. Neither may said appellant be held liable as an accessory due to his relationship with the principal
killer, Appellant Ortega, who is his brother-in-law.

Statement of the Case

This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia
from the Decision,[1] dated February 9, 1994 written by Judge Adriano R. Osorio,[2] finding them guilty of
murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an Information[3] dated October 19,
1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and mutually helping one another, without any
justifiable cause, with treachery and evident premeditation and with abuse of superior strenght (sic) and with
deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab
repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y
ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio,[4] pleaded not guilty to
the charge.[5] Accused John Doe was then at large.[6] After trial in due course, the court a quo promulgated the
questioned Decision. The dispositive portion reads:[7]
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond
reasonable doubt of the crime charged, the Court hereby sentenced (sic) them to suffer the penalty
of RECLUSION PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased
Andre Mar Masangkay and death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria[8] who took over
from the Public Attorneys Office as counsel for the accused.

The Facts
 Evidence for the Prosecution

The trial court summarized the testimonies of the prosecution witnesses as follows:[9]
Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim
Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the
compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That
while they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived
and joined them. That victim Andre Mar Masangkay answered the call of nature and went to the back portion of
the house. That accused Benjamin Ortega, Jr. followed him and later they [referring to the participants in the
drinking session] heard the victim Andre Mar shouted, Dont, help me! (Huwag, tulungan ninyo ako!) That he
and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin Ortega, Jr., on top
of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long
bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin,
Jr. That he [Quitlong] went to Romeo Ortega in the place where they were having the drinking session [for the
latter] to pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and together with
Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and brought Andre Mar to
the well and dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and Manuel Garcia
then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of
Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody of what
he saw. That he answered in the affirmative and he was allowed to go home. That his house is about 200 meters
from Romeo Ortegas house. That upon reaching home, his conscience bothered him and he told his mother what
he witnessed. That he went to the residence of Col. Leonardo Orig and reported the matter. That Col. Orig
accompanied him to the Valenzuela Police Station and some police officers went with them to the crime
scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were brought to the police
station.
On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this
case. That he narrated the incident to his mother on the night he witnessed the killing on October 15, 1992. That
on October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega,
Serafin and one Boyet were already having [a] drinking spree and he joined them. That accused Benjamin
Ortega, Jr. and Manuel Garcia were not yet in the place. That the stabbing happened between 12:00 midnight
and 12:30 a.m. That they drank gin with finger foods such as pork and shell fish. That he met the victim Andre
Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them at
about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and
Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered
the call of nature and went to the back portion of the house. That he cannot see Andre Mar Masangkay from the
place they were having the drinking session. That he did not see what happened to Andre Mar Masangkay. That
he only heard Masangkay asking for help. That accused Manuel Garcia was still in the drinking session when he
heard Masangkay was asking for help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and
neighbors. That when he heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to the back
portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the latter. That
Andre Mar Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr. on top stabbing the
former. That he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his
brother Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he
knows that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from
Andre Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no trouble that occurred during
the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9
years. That on October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported
to him the stabbing incident that occurred at Daangbakal near the subdivision he is living. That he relayed the
information to the Valenzuela Police Station and a police team under police officer Param accompanied them to
the place. That he asked the police officers to verify if there is a body of person inside the well. That the well
was covered with stones and he asked the police officers to seek the help of theneighbors (sic) to remove the
stones inside the well. That after the stones were removed, the body of the victim was found inside the well. That
 the lifeless body was pulled out from the well. That the body has several stab wounds. That he came to know the
victim as Andre Mar Masangkay. That two men were arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well with several stab wounds. That
Diosdado Quitlong told him that he was drinking with the victim and the assailants at the time of the
incident. That Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the
cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur
Highway. That he prepared the autopsy report and the sketch of human head and body indicating the location of
the stab wounds. That the cause of death is multiple stab wounds, contributory, [a]sphyxia by submersion in
water. That there were 13 stab wounds, 8 of which were on the frontal part of the body, 2 at the back and there
were contused abrasions around the neck and on the left arm. There was stab wound at the left side of the
neck. That the contused abrasion could be produced by cord or wire or rope.That there is (an) incised wound on
the left forearm. That the stab wounds which were backward downward of the body involved the lungs. That the
victim was in front of the assailant. That the stab wound on the upper left shoulder was caused when the
assailant was in front of the victim. That the assailant was in front of the victim when the stab wound near the
upper left armpit was inflicted as well as the stab wound on the left chest wall. That the stab wound on the back
left side of the body and the stab wound on the back right portion of the body may be produced when the
assailant was at the back of the victim. That the assailant was in front of the victim when the stab wound[s] on
the left elbow and left arm were inflicted. That the large airway is filled with muddy particles indicating that the
victim was alive when the victim inhaled the muddy particles. The heart is filled with multiple hemorrhage, loss
of blood or decreased of blood. The lungs is filled with water or muddy particles. The brain is pale due to loss of
blood. The stomach is one half filled with muddy particles which could [have been] taken in when submerged in
water.
On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he cannot tell if the
assailant or the victim were standing. That it is possible that the stab wounds was (sic) inflicted when both
[referring to participants] were standing or the victim was lying down and the assailant was on top. That he
cannot tell the number of the assailants.

Evidence for the Appellants

Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess
Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital. He left the hospital at seven
o clock in the morning, went home, changed his clothes and went to work.[10] After office hours, he and
Benjamin Ortega, Jr. passed by the canteen at their place of work. After drinking beer, they left at eight o clock
in the evening and headed home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar
Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant Garcias wife came and
asked him to go home because their daughter was still sick. To alleviate his daughters illness, he fetched his
mother-in-law who performed a ritual called tawas. After the ritual, he remained at home and attended to his
sick daughter. He then fell asleep but was awakened by police officers at six o clock in the morning of the
following day.
Maritess Garcia substantially corroborated the testimony of her husband. She however added two other
participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, aMang Serafin and Boyet Santos.[11]
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel
Garcia.[12] According to him, between eleven and twelve o clock in the evening, Masangkay left the drinking
session. Thirty (30) minutes after Masangkay left, he also left the drinking place to urinate.[13] He went behind
the house where he saw Masangkay peeping through the room of his sister Raquel. He ignored Masangkay
and continued urinating.[14] After he was through, Masangkay approached him and asked where his sister
was. He answered that he did not know. Without warning, Masangkay allegedly boxed him in the mouth, an
attack that induced bleeding and caused him to fall on his back. When he was about to stand up, Masangkay
drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped
his neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for help. Quitlong came
and, to avoid being stabbed, grabbed Masangkays right hand which was holding the knife. Quitlong was able
to wrest the knife from Masangkay and, with it, he stabbed Masangkay ten (10) times successively, in the left
chest and in the middle of the stomach. When the stabbing started, Ortega moved to the left side of
Masangkay to avoid being hit.[15] Quitlong chased Masangkay who ran towards the direction of the
well.Thereafter, Ortega went home and treated his injured left armpit and lips. Then, he slept.
When he woke up at six o clock the following morning, he saw police officers in front of his house. Taking
him with them, the lawmen proceeded to the well. From the railroad tracks where he was asked to sit, he saw
the police officers lift the body of a dead person from the well. He came to know the identity of the dead person
only after the body was taken to the police headquarters.[16]

The Trial Courts Discussion

The trial court explained its basis for appellants conviction as follows:[17]
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one
Romeo Ortega in lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and
breathing inside the deep well filled with water, head first and threw big stones/rocks inside the well to cover the
victim is a clear indication of the community of design to finish/kill victim Andre Mar Masangkay. Wounded
and unarmed victim Andre Mar Masangkay was in no position to flee and/or defend himself against the three
malefactors. Conspiracy and the taking advantage of superior strength were in attendance. The crime committed
by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and manner in which assistance is
rendered to the person inflicting the fatal wound may determine complicity where it would not otherwise be
evidence (People vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the heirs of victim
Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of the deceased.

The Issues

In their ten-page brief, appellants fault the trial court with the following: [18]
I. The trial court erred in holding that there is conspiracy on the basis of the prosecutions evidence that at
the time both accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he
succumbed due to stab wounds and brought and drop said body of Andrew Masangkay to the well to
commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body
was dropped in the well;
III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged;
and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone.

On the basis of the records and the arguments raised by the appellants and the People, we believe that the question to be
resolved could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia?

The Courts Ruling

We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia
deserves acquittal.
 First Issue: Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting narrations. The prosecution
witnesses described the commission of the crime and positively identified appellants as the perpetrators. The
witnesses for the defense, on the other hand, attempted to prove denial and alibi. As to which of the two
contending versions speaks the truth primarily rests on a critical evaluation of the credibility of the witnesses
and their stories. In this regard, the trial court held:[19]
The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses
and has keenly observed their behavior and demeanor on the witness stand and is convinced that the story of the
prosecution is the more believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded
credible and his credibility is reinforced by the fact that he has no reason to testify falsely against the accused. It
was Diosdado Quitlong who reported the stabbing incident to the police authorities. If Quitlong stabbed and
killed the victim Masangkay, he will keep away from the police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses demeanor and deportment on the
stand as they rendered their testimonies, its evaluation of the credibility of witnesses is entitled to the highest
respect.Therefore, unless the trial judge plainly overlooked certain facts of substance and value which, if
considered, might affect the result of the case, his assessment of credibility must be respected.[20]
In the instant case, we have meticulously scoured the records and found no reason to reverse the trial
courts assessment of the credibility of the witnesses and their testimonies[21] insofar as Appellant Ortega is
concerned. The narration of Eyewitness Diosdado Quitlong appears to be spontaneous and consistent. It is
straightforward, detailed, vivid and logical. Thus, it clearly deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable. Appellant
Ortega claimed that after he was able to free himself from Masangkays grip, he went home, treated his injuries
and slept.[22]This is not the ordinary reaction of a person assaulted. If Ortegas version of the assault was true,
he should have immediately reported the matter to the police authorities, if only out of gratitude to Quitlong who
came to his rescue.Likewise, it is difficult to believe that a man would just sleep after someone was stabbed in
his own backyard. Further, we deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times
successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay. Also inconsistent
with human experience is his narration that Masangkay persisted in choking him instead of defending himself
from the alleged successive stabbing of Quitlong.[23] The natural tendency of a person under attack is to defend
himself and not to persist in choking a defenseless third person.

Murder or Homicide?

Although treachery, evident premeditation and abuse of superior strength were alleged in the information,
the trial court found the presence only of abuse of superior strength.
We disagree with the trial courts finding. Abuse of superior strength requires deliberate intent on the part
of the accused to take advantage of such superiority. It must be shown that the accused purposely used
excessive force that was manifestly out of proportion to the means available to the victims defense.[24] In this
light, it is necessary to evaluate not only the physical condition and weapon of the protagonists but also the
various incidents of the event.[25]
In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortegas availment of
force excessively out of proportion to the means of defense available to the victim to defend himself. Quitlong
described the assault made by Appellant Ortega as follows:[26]
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with Andrew
Masangkay and where you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of Mr.
Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and the house of his son
Benjamin Ortega, Jr. are near each other.
xxx xxx xxx
Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia, you
(sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San Andres and
Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and joined
the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San
Andres, myself and Andrew Masangkay. Andrew Masangkay answer to a call of nature and went
to the back portion of the house, and Benjamin Ortega, Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after you
heard huwag, tulungan nyo ako coming from the mouth of the late Andrew Masangkay, what
happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing Andrew
Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done telling us the
particular position of the late Andrew Masangkay and how Benjamin Ortega, Jr proceeded with
the stabbing against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was
nakakabayo and with his right hand with closed fist holding the weapon, he was thrusting this
weapon on the body of the victim, he was making downward and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.
 It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only five
feet and five inches tall.[27] There was no testimony as to how the attack was initiated. The accused and the
victim were already grappling when Quitlong arrived. Nothing in the foregoing testimony and circumstances
can be interpreted as abuse of superior strength. Hence, Ortega is liable only for homicide, not murder.

Second Issue: Liability of Appellant Manuel Garcia

Appellants argue that the finding of conspiracy by the trial court is based on mere assumption and
conjecture x x x.[28] Allegedly, the medico-legal finding that the large airway was filled with muddy particles
indicating that the victim was alive when the victim inhaled the muddy particles did not necessarily mean that
such muddy particles entered the body of the victim while he was still alive. The Sinumpaang Salaysay of
Quitlong stated, Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr. Thus, the
prosecution evidence shows Masangkay was already dead when he was lifted and dumped into the
well. Hence, Garcia could be held liable only as an accessory.[29]
We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states that
criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be
different from that which he intended. The essential requisites for the application of this provision are that (a)
the intended act is felonious; (b) the resulting act is likewise a felony; and (c) the unintended albeit graver
wrong was primarily caused by the actors wrongful acts. In assisting Appellant Ortega, Jr. carry the body of
Masangkay to the well, Appellant Garcia was committing a felony. The offense was that of concealing the body
of the crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide.[30] Although
Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in throwing
the body into the well, he is still liable for the direct and natural consequence of his felonious act, even if the
resulting offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy conducted by
the NBI medico-legal officer showed that the victim at that time was still alive, and that he died subsequently of
drowning.[31] That drowning was the immediate cause of death was medically demonstrated by the muddy
particles found in the victims airway, lungs and stomach.[32] This is evident from the expert testimony given by
the medico-legal officer, quoted below:[33]
ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of Exhibit N, beginning with tracheo-
bronchial tree, that is sentence immediately after paragraph 10, 2.5 cms. Will you please explain
this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving of
muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to the heart.
 Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have been
damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which is number 13?
A Yes, sir.
Q And the last one, under the particular point hemothorax?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate at the thoraxic
cavity and this was admixed with granular materials?
Q And what cause the admixing with granular materials on said particular portion of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
A Its due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came in, in that particular
portion of the body and caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please explain the same?
A The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)
A Filipino authority on forensic medicine opines that any of the following medical findings may show that
drowning is the cause of death:[34]
 1. The presence of materials or foreign bodies in the hands of the victim. The clenching of the hands is a
manifestation of cadaveric spasm in the effort of the victim to save himself from drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding to the medium where the body was
recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in the medium where the victim was
found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It was proven that his airpassage,
or specifically his tracheo-bronchial tree, was filled with muddy particles which were residues at the bottom of
the well.Even his stomach was half-filled with such muddy particles. The unrebutted testimony of the medico-
legal officer that all these muddy particles were ingested when the victim was still alive proved that the victim
died of drowning inside the well.
The drowning was the direct, natural and logical consequence of the felony that Appellant Garcia had
intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of the Revised Penal
Code. Under this paragraph, a person may be convicted of homicide although he had no original intent to
kill.[35]
In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime of
homicide, there are, however, two legal obstacles barring his conviction, even as an accessory as prayed for
by appellants counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of attack[ing], assault[ing], and
stab[bing] repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY
y ABLOLAThe prosecutions evidence itself shows that Garcia had nothing to do with the stabbing which was
solely perpetrated by Appellant Ortega. His responsibility relates only to the attempted concealment of the
crime and the resulting drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is that an
accused cannot be convicted of an offense, unless it is clearly charged in the complaint or
information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against
him. To convict him of an offense other than that charged in the complaint or information would be a violation
of this constitutional right.[36] Section 14, par. 2, of the 1987 Constitution explicitly guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However,
after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable. (Underscoring supplied)
In People vs. Pailano,[37] this Court ruled that there can be no conviction for rape on a woman deprived of
reason or otherwise unconscious where the information charged the accused of sexual assault by using force
or intimidation, thus:
The criminal complaint in this case alleged the commission of the crime through the first method although the
prosecution sought to establish at the trial that the complainant was a mental retardate. Its purpose in doing so is
not clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground that he violated Anita while she
was deprived of reason or unconscious, such conviction could not have been possible under the criminal
complaint as worded. This described the offense as having been committed by Antonio Pailano, being then
provided with a scythe, by means of violence and intimidation, (who) did, then and there, wilfully, unlawfully
and feloniously have carnal knowledge of the complainant, Anita Ibaez, 15 years of age, against her will. No
mention was made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita while she was unconscious or
otherwise deprived of reason -- and not through force and intimidation, which was the method alleged -- would
 have violated his right to be informed of the nature and cause of the accusation against him.[Article IV, Sec. 19,
Constitution of 1973; now Article III, Sec. 14(2)] This right is safeguarded by the Constitution to every accused
so he can prepare an adequate defense against the charge against him. Convicting him of a ground not alleged
while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. This
right was, of course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be found guilty of
qualified seduction, which had not been alleged in the criminal complaint against him. In the case of People vs.
Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for homicide of a person held responsible
for the suicide of the woman he was supposed to have raped, as the crime he was accused of -- and acquitted --
was not homicide but rape. More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the
accused was charged with the misappropriation of funds held by him in trust with the obligation to return the
same under Article 315, paragraph 1(b) of the Revised Penal Code, but was convicted of swindling by means of
false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the information. The Court
said such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an
information that charges murder by means of stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia assisted in concealing x x x the
body of the crime, x x x in order to prevent its discovery, he can neither be convicted as an accessory after the
fact defined under Article 19, par. 2, of the Revised Penal Code. The records show that Appellant Garcia is a
brother-in-law of Appellant Ortega,[38] the latters sister, Maritess, being his wife.[39] Such relationship exempts
Appellant Garcia from criminal liability as provided by Article 20 of the Revised Penal Code:
ART. 20. Accessories who are exempt from criminal liability. -- The penalties prescribed for accessories shall
not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate,
natural, and adopted brothers and sisters, or relatives by affinity within the same degrees with the single
exception of accessories falling within the provisions of paragraph 1 of the next preceding article.
On the other hand, the next preceding article provides:
ART. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and
without having participated therein, either as principals or accomplices, take part subsequent to its commission
in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order
to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the
accessory acts with abuse of his public functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to
be habitually guilty of some other crime.
Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega, Jr., is
legally entitled to the aforequoted exempting provision of the Revised Penal Code. This Court is thus
mandated by law to acquit him.

Penalty and Damages

The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former amount was
proven both by documentary evidence and by the testimony of Melba Lozano, a sister of the victim.[40] Of the
expenses alleged to have been incurred, the Court can give credence only to those that are supported by
receipts and appear to have been genuinely incurred in connection with the death of the victim.[41] However, in
line with current jurisprudence,[42] Appellant Ortega shall also indemnify the heirs of the deceased in the sum
of P50,000.00. Indemnity requires no proof other than the fact of death and appellants responsibility
therefor.[43]
 The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is
imposable in its medium period, absent any aggravating or mitigating circumstance, as in the case of Appellant
Ortega.Because he is entitled to the benefits of the Indeterminate Sentence Law, the minimum term shall be
one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin Ortega,
Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum. Appellant
Ortega, Jr. is also ORDERED to pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual
damages. Appellant Manuel Garcia is ACQUITTED. His immediate release from confinement
is ORDERED unless he is detained for some other valid cause.
SO ORDERED.
Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

[1]
Original Records, pp. 183-198; rollo, pp. 29-44.
[2]
Regional Trial Court of Valenzuela, Metro Manila, Branch 171.
[3]
Original Records, p. 1; rollo, p. 8.
[4] Atty. Ricardo Perez of the Public Attorneys Office.
[5] Original Records, p. 25.
[6] After promulgation of judgment, John Doe was identified as Romeo Ortega and the latest trial courts Order in
this case was for the state prosecutor to conduct a preliminary investigation to determine his
liability. (Original Records, pp. 207-210).
[7]
Original Records, p. 198; rollo, p. 44; Decision, p. 16.
[8] Original Records, p. 205.
[9] Ibid., pp. 185-187.
[10] TSN, June 14, 1993, pp. 12-45.
[11] Ibid., pp. 11-20.
[12] TSN, August 16, 1993, pp. 7-19.
[13] Ibid., pp. 21-22.
[14]
Ibid., pp. 23-25.
[15]
Ibid., pp. 26-35.
[16]
TSN, September 22, 1993, pp. 3-22.
[17]
Original Records, pp. 197-198; rollo, pp. 43-44; Decision, pp. 15-16.
[18] Rollo, p. 63; original text in upper case.
[19] Original Records, pp. 196-197; rollo, pp. 42-43; Decision, pp. 14-15.
[20] People vs. De Guzman, 188 SCRA 405, 410-411, August 7, 1990.
[21] People vs. Gabris, 258 SCRA 663, 671, July 11, 1996 citing the cases of People vs. Vallena, 244 SCRA
685, 691, June 1, 1995; People vs. Jaca, 229 SCRA 332, January 18, 1994; People vs. Tismo, 204
SCRA 535, 552, December 4, 1991; and People vs. Uycoque, 246 SCRA 769, 779, July 31, 1995.
[22] TSN, September 22, 1993, pp. 6-14.
[23] Ibid., pp. 4-6.
[24]
People vs. Casingal, 243 SCRA 37, 46, March 29, 1995.
[25]
People vs. Escoto, 244 SCRA 87, 97-98, May 11, 1995 citing the cases of People vs. Martinez, 96 SCRA
714, March 31, 1980 and People vs. Cabiling, 74 SCRA 285, December 17, 1976.
[26]
TSN, February 12, 1993, pp. 11-15.
[27]
TSN, October 27, 1993, p. 12.
[28]
Rollo, p. 64.
[29]
Ibid., pp. 65-66.
[30] Paragraph no. 2 of Article 19 of the Revised Penal Code provides for accessories manners of participation:
ARTICLE 19. Accessories. -- Accessories are those who, having knowledge of the commission of the crime,
and without having participated therein, either as principals or accomplices, take part subsequent to its
commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent
its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory
acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide,
murder or attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.
Under this Article, it is required that: (1) the accessory should have knowledge of the crime, (2) he did not take
part in its commission as principal or accomplice, and (3) subsequent to its commission, he took part in
any of the three ways enumerated above.
[31] The exact words used by the medico-legal officer were: The multiple stab wounds sustained by the victim
and asphyxia by submersion in water. (TSN, April 16, 1993, p. 8).
[32] TSN, April 16, 1993, pp. 20-24.
[33] TSN, April 16, 1993, pp. 20-24.
[34] Pedro Solis, Legal Medicine, 1987, p. 448.
[35] Aquino, The Revised Penal Code, 1987 edition, Volume 1, p. 70 citing Pico vs. U.S., 57L.Ed.812, 40 Phil.
117, 15 Phil. 549.
[36] People vs. Guevarra, 179 SCRA 740, 751, December 4, 1989 citing the cases of Matilde, Jr. vs. Jabson, 68
SCRA 456, 461, December 29, 1975 and U.S. vs. Ocampo, 23 Phil. 396.
[37] 169 SCRA 649, 653-654, January 31, 1989.
[38] TSN, June 14, 1993, p. 39; TSN, August 16, 1993, p. 9.
[39] TSN, October 13, 1993, p. 16.
[40] The following receipts were offered as evidence: (1) receipt of the Diocese of Lucena for funeral and
electricity charges (350.00); (2) receipt for transportation expense for the transfer of remains of Andre
Mar Masangkay (3,500.00); (3) receipt of Funeral Helen for home and coach services (5,000.00); (4)
receipt of the Diocese of San Pedro Bautista Parish for mortuary rental (350.00); (5) receipt of the Most
Holy Redeemer Parish for use of mortuary (2,590.00); and (6) receipt of La Funeraria Paz for their
services (20,000.00).
[41]
People vs. Cayabyab, G.R. No. 123073, June 19, 1997 citing the cases of People vs. Rosario, 246 SCRA
658, 671, July 18, 1995 and People vs. Degoma, 209 SCRA 266, 274, May 22, 1992.
[42] People vs. Quinao, et al., G.R. No. 108454, March 13, 1997; People vs. Azugue, G.R. No. 110098,
February 26, 1997; People vs. Ombrog, G.R. No. 104666, February 12, 1997.
[43] People vs. Cayabyab, supra.
 
 EN BANC

[G.R. No. 130487. June 19, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO ESTRADA, accused-appellant.

DECISION
PUNO, J.:

This is an automatic review of the death penalty imposed on accused-appellant by the Regional Trial Court,
Branch 44, Dagupan City in Criminal Case No. 94-00860-D.[1] We nullify the proceedings in the court a
quo and remand the case for proper disposition.
In an Information dated December 29, 1994, accused-appellant Roberto Estrada y Lopez was charged
with the crime of murder for the killing of one Rogelio P. Mararac, a security guard. The Information reads:

That on or about the 27th day of December 1994 in the City of Dagupan, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, ROBERTO ESTRADA Y LOPEZ, being then armed with a
butchers knife, with intent to kill one ROGELIO P. MARARAC with treachery and committed in a holy place of
worship, did then and there, wilfully, unlawfully and criminally, attack, assault and use personal violence upon
the latter by stabbing him, hitting him on vital parts of his body with the said weapon, thereby causing his death
shortly thereafter due to Cardiorespiratory Arrest, Massive Intrathoracic Hemorrhage, Stab Wound as per
Autopsy Report and Certificate of Death both issued by Dr. Tomas G. Cornel, Assistant City Health Officer, this
City, to the damage and prejudice of the legal heirs of said deceased ROGELIO P. MARARAC in the amount
of not less than FIFTY THOUSAND PESOS (P50,000.00), Philippine currency, and other consequential
damages.

Contrary to Article 248 of the Revised Penal Code.

Dagupan City, Philippines, December 29, 1994.[2]

At the arraignment on January 6, 1995, accused-appellants counsel, the Public Attorneys Office, filed an
Urgent Motion to Suspend Arraignment and to Commit Accused to Psychiatric Ward at Baguio General
Hospital. It was alleged that accused-appellant could not properly and intelligently enter a plea because he was
suffering from a mental defect; that before the commission of the crime, he was confined at the psychiatric
ward of the Baguio General Hospital in Baguio City. He prayed for the suspension of his arraignment and the
issuance of an order confining him at the said hospital.[3]
The motion was opposed by the City Prosecutor. The trial court, motu proprio, propounded several questions
on accused-appellant. Finding that the questions were understood and answered by him intelligently, the court
denied the motion that same day.[4]
The arraignment proceeded and a plea of not guilty was entered by the court on accused-appellants behalf.[5]
The prosecution presented four (4) witnesses, namely: (1) Dr. Tomas Cornel, the Assistant Health Officer
of Dagupan City who issued the death certificate and conducted the autopsy on the victim; (2) Crisanto
Santillan, an eyewitness to the incident; (3) SPO1 Conrado Francisco, one of the policemen who apprehended
accused-appellant; and (4) Rosalinda Sobremonte, the victims sister. The prosecution established the
following facts:
In the morning of December 27, 1994, at the St. Johns Cathedral, Dagupan City, the sacrament of confirmation
was being performed by the Roman Catholic Bishop of Dagupan City on the children of Dagupan. The
cathedral was filled with more than a thousand people. At 11:00 A.M., nearing the close of the rites, the Bishop
went down the altar to give his final blessing to the children in the front rows. While the Bishop was giving his
blessing, a man from the crowd went up and walked towards the center of the altar. He stopped beside the
Bishops chair, turned around and, in full view of the Catholic faithful, sat on the Bishops chair. The man was
accused-appellant. Crisanto Santillan, who was assisting the Bishop at the rites, saw accused-
appellant. Santillan approached accused-appellant and requested him to vacate the Bishops chair. Gripping
the chairs armrest, accused-appellant replied in Pangasinese: No matter what will happen, I will not move out!
Hearing this, Santillan moved away.[6]
Some of the churchgoers summoned Rogelio Mararac, the security guard at the cathedral. Mararac went near
accused-appellant and told him to vacate the Bishops chair. Accused-appellant stared intensely at the
guard. Mararac grabbed his nightstick and used it to tap accused-appellants hand on the armrest. Appellant
did not budge. Again, Mararac tapped the latters hand. Still no reaction. Mararac was about to strike again
when suddenly accused-appellant drew a knife from his back, lunged at Mararac and stabbed him, hitting him
below his left throat. Mararac fell. Accused-appellant went over the victim and tried to stab him again but
Mararac parried his thrust. Accused-appellant looked up and around him. He got up, went to the microphone
and shouted: Anggapuy nayan dia! (No one can beat me here!). He returned to the Bishops chair and sat on it
again. Mararac, wounded and bleeding, slowly dragged himself down the altar.[7]
Meanwhile, SPO1 Conrado Francisco, who was directing traffic outside, received a report of a commotion
inside the cathedral. Rushing to the cathedral, SPO1 Francisco saw a man, accused-appellant, with red stains
on his shirt and a knife in one hand sitting on a chair at the center of the altar. He ran to accused-appellant and
advised him to drop the knife. Accused-appellant obeyed. He dropped the knife and raised his
hands. Thereupon, Chief Inspector Wendy Rosario, Deputy Police Chief, Dagupan City, who was attending the
confirmation rites at the Cathedral, went near accused-appellant to pick up the knife. Suddenly, accused-
appellant embraced Chief Inspector Rosario and the two wrestled with each other. Chief Inspector Rosario was
able to subdue accused-appellant. The police came and when they frisked appellant, they found a leather
scabbard tucked around his waist.[8] He was brought to the police station and placed in jail.
In the meantime, Mararac, the security guard, was brought to the hospital where he expired a few minutes
upon arrival. He died of cardio-respiratory arrest, massive, intra-thoracic hemorrhage, stab wound.[9] He was
found to have sustained two (2) stab wounds: one just below the left throat and the other on the left arm. The
autopsy reported the following findings:

EXTERNAL FINDINGS

1. Stab wound, along the parasternal line, level of the 2nd intercostal space, left, 1 x 1
penetrating. The edge of one side of the wound is sharp and pointed.
2. Stab wound, antero-lateral aspect, distal 3rd, arm, left, x x . The edge of one side of the wound is
sharp and pointed.

INTERNAL FINDINGS

Massive intrathoracic, left, hemorrhage with perforation of the upper and lower lobe of the left lung. The left
pulmonary blood vessel was severely cut.[10]
After the prosecution rested its case, accused-appellant, with leave of court, filed a Demurrer to Evidence. He
claimed that the prosecution failed to prove the crime of murder because there was no evidence of the
qualifying circumstance of treachery; that there was unlawful aggression by the victim when he tapped
accused-appellants hand with his nightstick; and that accused-appellant did not have sufficient ability to
calculate his defensive acts because he was of unsound mind.[11]
The Demurrer to Evidence was opposed by the public prosecutor. He alleged that the accused pretended to be
weak, tame and of unsound mind; that after he made the first stab, he furiously continued stabbing and
slashing the victim to finish him off undeterred by the fact that he was in a holy place where a religious
ceremony was being conducted; and the plea of unsound mind had already been ruled upon by the trial court
in its order of January 6, 1995.[12]
On February 21, 1995, a letter was sent by Inspector Wilfredo F. Valdez, Jail Warden of Dagupan City to the
trial court. Inspector Valdez requested the court to allow accused-appellant, who was confined at the city jail, to
be treated at the Baguio General Hospital to determine whether he should remain in jail or be transferred to
some other institution. The other prisoners were allegedly not comfortable with appellant because he had been
exhibiting unusual behavior. He tried to climb up the jail roof so he could escape and see his family.[13]
As ordered by the trial court, the public prosecutor filed a Comment to the jail wardens letter. He reiterated that
the mental condition of accused-appellant to stand trial had already been determined; unless a competent
government agency certifies otherwise, the trial should proceed; and the city jail warden was not the proper
person to determine whether accused-appellant was mentally ill or not.[14]
In an order dated August 21, 1995, the trial court denied the Demurrer to Evidence.[15] Accused-appellant
moved for reconsideration.
While the motion for reconsideration was pending, on February 26, 1996, counsel for accused-appellant filed a
Motion to Confine Accused for Physical, Mental and Psychiatric Examination. Appellants counsel informed the
court that accused-appellant had been exhibiting abnormal behavior for the past weeks; he would shout at the
top of his voice and cause panic among the jail inmates and personnel; that appellant had not been eating and
sleeping; that his co-inmates had been complaining of not getting enough sleep for fear of being attacked by
him while asleep; that once, while they were sleeping, appellant took out all his personal effects and waste
matter and burned them inside the cell which again caused panic among the inmates. Appellants counsel
prayed that his client be confined at the National Center for Mental Health in Manila or at the Baguio General
Hospital.[16] Attached to the motion were two (2) letters. One, dated February 19, 1996, was from Inspector
Pedrito Llopis, Jail Warden, Dagupan City, addressed to the trial court judge informing him of appellants
irrational behavior and seeking the issuance of a court order for the immediate psychiatric and mental
examination of accused-appellant.[17] The second letter, dated February 21, 1996, was addressed to Inspector
Llopis from the Bukang Liwayway Association, an association of inmates in the Dagupan City Jail. The letter,
signed by the president, secretary and adviser of said association, informed the jail warden of appellants
unusual behavior and requested that immediate action be taken against him to avoid future violent incidents in
the jail.[18]
On September 18, 1996, the trial court denied reconsideration of the order denying the Demurrer to Evidence.
The court ordered accused-appellant to present his evidence on October 15, 1996.[19]
Accused-appellant did not take the witness stand. Instead, his counsel presented the testimony of Dr. Maria
Soledad Gawidan,[20] a resident physician in the Department of Psychiatry at the Baguio General Hospital, and
accused-appellants medical and clinical records at the said hospital.[21] Dr. Gawidan testified that appellant had
been confined at the BGH from February 18, 1993 to February 22, 1993 and that he suffered from
Schizophrenic Psychosis, Paranoid Typeschizophrenia, paranoid, chronic, paranoid type;[22] and after four (4)
days of confinement, he was discharged in improved physical and mental condition.[23] The medical and clinical
records consisted of the following: (1) letter of Dr. Alfredo Sy, Municipal Health Officer, Calasiao, Pangasinan
to Dr. Jesus del Prado, Director, BGH referring accused-appellant for admission and treatment after a relapse
of his violent behavior;[24] (2) the clinical cover sheet of appellant at the BGH;[25] (3) the consent slip of
appellants wife voluntarily entrusting appellant to the BGH;[26] (4) the Patients Record;[27] (5) the Consent for
Discharge signed by appellants wife;[28] (6) the Summary and Discharges of appellant;[29] (7) appellants clinical
case history;[30] (8) the admitting notes;[31] (9) Physicians Order Form;[32] (10) the Treatment Form/ medication
sheet;[33] and (11) Nurses Notes.[34]
The trial court rendered a decision on June 23, 1997. It upheld the prosecution evidence and found
accused-appellant guilty of the crime charged and thereby sentenced him to death, viz:

WHEREFORE, the court finds accused Roberto Estrada y Lopez guilty beyond reasonable doubt of the crime
of Murder and in view of the presence of the aggravating circumstance of cruelty which is not offset by any
mitigating circumstance, the accused is sentenced to suffer the Death Penalty and to indemnify the heirs of the
deceased in the amount of P50,000.00.

The accused is ordered to pay the sum of P18,870.00 representing actual expenses and P100,000.00 as
moral damages.

SO ORDERED.[35]
In this appeal, accused-appellant assigns the following errors:
I

THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED,
DESPITE CLEAR AND CONVINCING EVIDENCE ON RECORD, SUPPORTING HIS PLEA OF
INSANITY.
 II
THE LOWER COURT LIKEWISE ERRED IN HOLDING THAT THE STABBING TO DEATH OF ROGELIO
MARARAC WAS ATTENDED WITH TREACHERY AND AGGRAVATED BY CRUELTY, GRANTING
ARGUENDO THAT ACCUSED-APPELLANTS PLEA OF INSANITY CANNOT BE CONSIDERED AN
EXEMPTING CIRCUMSTANCE.[36]
The basic principle in our criminal law is that a person is criminally liable for a felony committed by
him.[37] Under the classical theory on which our penal code is mainly based, the basis of criminal liability is
human free will.[38] Man is essentially a moral creature with an absolutely free will to choose between good and
evil.[39] When he commits a felonious or criminal act (delito doloso), the act is presumed to have been done
voluntarily,[40] i.e., with freedom, intelligence and intent.[41] Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will appears unimpaired.[42]
In the absence of evidence to the contrary, the law presumes that every person is of sound mind[43] and that all
acts are voluntary.[44] The moral and legal presumption under our law is that freedom and intelligence
constitute the normal condition of a person.[45] This presumption, however, may be overthrown by other factors;
and one of these is insanity which exempts the actor from criminal liability.[46]
The Revised Penal Code in Article 12 (1) provides:

ART. 12. Circumstances which exempt from criminal liability.The following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid interval.

When the imbecile or an insane person has committed an act which the law defines as a felony (delito),
the court shall order his confinement in one of the hospitals or asylums established for persons thus
afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court.

An insane person is exempt from criminal liability unless he has acted during a lucid interval. If the court
therefore finds the accused insane when the alleged crime was committed, he shall be acquitted but the court
shall order his confinement in a hospital or asylum for treatment until he may be released without danger. An
acquittal of the accused does not result in his outright release, but rather in a verdict which is followed by
commitment of the accused to a mental institution.[47]
In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act.
Mere abnormality of the mental faculties will not exclude imputability.[48] The accused must be so insane as to
be incapable of entertaining a criminal intent.[49] He must be deprived of reason and act without the least
discernment because there is a complete absence of the power to discern or a total deprivation of freedom of
the will.[50]
Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance
must prove it by clear and positive evidence.[51] And the evidence on this point must refer to the time preceding
the act under prosecution or to the very moment of its execution.[52]
To ascertain a persons mental condition at the time of the act, it is permissible to receive evidence of the
condition of his mind within a reasonable period both before and after that time.[53] Direct testimony is not
required.[54] Neither are specific acts of derangement essential to establish insanity as a
defense.[55] Circumstantial evidence, if clear and convincing, suffices; for the unfathomable mind can only be
known by overt acts. A persons thoughts, motives, and emotions may be evaluated only by outward acts to
determine whether these conform to the practice of people of sound mind.[56]
In the case at bar, there is no direct proof that accused-appellant was afflicted with insanity at the time he killed
Mararac. The absence of direct proof, nevertheless, does not entirely discount the probability that appellant
was not of sound mind at that time. From the affidavit of Crisanto Santillan[57] attached to the Information, there
are certain circumstances that should have placed the trial court on notice that appellant may not have been in
full possession of his mental faculties when he attacked Mararac. It was highly unusual for a sane person to go
up to the altar and sit on the Bishops chair while the Bishop was administering the Holy Sacrament of
Confirmation to children in a jampacked cathedral. It goes against normal and ordinary behavior for appellant,
without sufficient provocation from the security guard, to stab the latter at the altar, during sacramental rites
and in front of all the Catholic faithful to witness. Appellant did not flee, or at least attempt to flee after the
stabbing. He nonchalantly approached the microphone and, over the public address system, uttered words to
the faithful which no rational person would have made. He then returned to the Bishops chair and sat there as
if nothing happened.
Accused-appellants history of mental illness was brought to the courts attention on the day of the
arraignment. Counsel for accused-appellant moved for suspension of the arraignment on the ground that his
client could not properly and intelligently enter a plea due to his mental condition. The Motion for Suspension is
authorized under Section 12, Rule 116 of the 1985 Rules on Criminal Procedure which provides:

Sec. 12. Suspension of arraignment.The arraignment shall be suspended, if at the time thereof:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him
unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court
shall order his mental examination and, if necessary, his confinement for such purpose.

(b) x x x.

The arraignment of an accused shall be suspended if at the time thereof he appears to be suffering from an
unsound mental condition of such nature as to render him unable to fully understand the charge against him
and to plead intelligently thereto. Under these circumstances, the court must suspend the proceedings and
order the mental examination of the accused, and if confinement be necessary for examination, order such
confinement and examination. If the accused is not in full possession of his mental faculties at the time he is
informed at the arraignment of the nature and cause of the accusation against him, the process is itself a felo
de se, for he can neither comprehend the full import of the charge nor can he give an intelligent plea thereto.[58]
The question of suspending the arraignment lies within the discretion of the trial court.[59]And the test to
determine whether the proceedings will be suspended depends on the question of whether the accused, even
with the assistance of counsel, would have a fair trial. This rule was laid down as early as 1917, thus:
In passing on the question of the propriety of suspending the proceedings against an accused person on the
ground of present insanity, the judges should bear in mind that not every aberration of the mind or exhibition of
mental deficiency is sufficient to justify such suspension. The test is to be found in the question whether
the accused would have a fair trial, with the assistance which the law secures or gives; and it is obvious
that under a system of procedure like ours where every accused person has legal counsel, it is not necessary
to be so particular as it used to be in England where the accused had no advocate but himself.[60] In the
American jurisdiction, the issue of the accuseds present insanity or insanity at the time of the court
proceedings is separate and distinct from his criminal responsibility at the time of commission of the act. The
defense of insanity in a criminal trial concerns the defendants mental condition at the time of the crimes
commission. Present insanity is commonly referred to as competency to stand trial[61] and relates to the
appropriateness of conducting the criminal proceeding in light of the defendants present inability to participate
meaningfully and effectively.[62] In competency cases, the accused may have been sane or insane during the
commission of the offense which relates to a determination of his guilt. However, if he is found incompetent to
stand trial, the trial is simply postponed until such time as he may be found competent. Incompetency to stand
trial is not a defense; it merely postpones the trial.[63]
In determining a defendants competency to stand trial, the test is whether he has the capacity to comprehend
his position, understand the nature and object of the proceedings against him, to conduct his defense in a
rational manner, and to cooperate, communicate with, and assist his counsel to the end that any available
defense may be interposed.[64] This test is prescribed by state law but it exists generally as a statutory
recognition of the rule at common law.[65]Thus:
[I]t is not enough for the x x x judge to find that the defendant [is] oriented to time and place, and [has] some
recollection of events, but that the test must be whether he has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understandingand whether he has a rational as well as factual
understanding of the proceedings against him.[66]
There are two distinct matters to be determined under this test: (1) whether the defendant is sufficiently
coherent to provide his counsel with information necessary or relevant to constructing a defense; and (2)
whether he is able to comprehend the significance of the trial and his relation to it.[67] The first requisite is the
relation between the defendant and his counsel such that the defendant must be able to confer coherently with
his counsel. The second is the relation of the defendant vis-a-vis the court proceedings, i.e., that he must have
a rational as well as a factual understanding of the proceedings.[68]
The rule barring trial or sentence of an insane person is for the protection of the accused, rather than of the
public.[69] It has been held that it is inhuman to require an accused disabled by act of God to make a just
defense for his life or liberty.[70] To put a legally incompetent person on trial or to convict and sentence him is a
violation of the constitutional rights to a fair trial[71] and due process of law;[72] and this has several reasons
underlying it.[73] For one, the accuracy of the proceedings may not be assured, as an incompetent defendant
who cannot comprehend the proceedings may not appreciate what information is relevant to the proof of his
innocence. Moreover, he is not in a position to exercise many of the rights afforded a defendant in a criminal
case, e.g., the right to effectively consult with counsel, the right to testify in his own behalf, and the right to
confront opposing witnesses, which rights are safeguards for the accuracy of the trial result. Second, the
fairness of the proceedings may be questioned, as there are certain basic decisions in the course of a criminal
proceeding which a defendant is expected to make for himself, and one of these is his plea. Third, the dignity
of the proceedings may be disrupted, for an incompetent defendant is likely to conduct himself in the courtroom
in a manner which may destroy the decorum of the court. Even if the defendant remains passive, his lack of
comprehension fundamentally impairs the functioning of the trial process. A criminal proceeding is essentially
an adversarial proceeding. If the defendant is not a conscious and intelligent participant, the adjudication loses
its character as a reasoned interaction between an individual and his community and becomes an invective
against an insensible object. Fourth, it is important that the defendant knows why he is being punished, a
comprehension which is greatly dependent upon his understanding of what occurs at trial. An incompetent
defendant may not realize the moral reprehensibility of his conduct. The societal goal of institutionalized
retribution may be frustrated when the force of the state is brought to bear against one who cannot
comprehend its significance.[74]
The determination of whether a sanity investigation or hearing should be ordered rests generally in the
discretion of the trial court.[75] Mere allegation of insanity is insufficient. There must be evidence or
circumstances that raise a reasonable doubt[76] or a bona fide doubt[77] as to defendants competence to stand
trial. Among the factors a judge may consider is evidence of the defendants irrational behavior, history of
mental illness or behavioral abnormalities, previous confinement for mental disturbance, demeanor of the
defendant, and psychiatric or even lay testimony bearing on the issue of competency in a particular case.[78]
In the case at bar, when accused-appellant moved for suspension of the arraignment on the ground of
accuseds mental condition, the trial court denied the motion after finding that the questions propounded on
appellant were intelligently answered by him. The court declared::
xxx

It should be noted that when this case was called, the Presiding Judge asked questions on the accused, and
he (accused) answered intelligently. As a matter of fact, when asked where he was born, he answered, in
Tayug.

The accused could answer intelligently. He could understand the questions asked of him.

WHEREFORE, for lack of merit, the Urgent Motion to Suspend Arraignment and to Commit Accused to
Psychiatric Ward at Baguio General Hospital, is hereby DENIED.

SO ORDERED.[79]
The fact that accused-appellant was able to answer the questions asked by the trial court is not conclusive
evidence that he was competent enough to stand trial and assist in his defense. Section 12, Rule 116 speaks
of an unsound mental condition that effectively renders [the accused] unable to fully understand the charge
against him and to plead intelligently thereto. It is not clear whether accused-appellant was of such sound mind
as to fully understand the charge against him. It is also not certain whether his plea was made intelligently. The
plea of not guilty was not made by accused-appellant but by the trial court because of his refusal to plead.[80]
The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a
psychiatrist or psychologist or some other expert equipped with the specialized knowledge of determining the
state of a persons mental health. To determine the accused-appellants competency to stand trial, the court, in
the instant case, should have at least ordered the examination of accused-appellant, especially in the light of
the latters history of mental illness.
If the medical history was not enough to create a reasonable doubt in the judges mind of accused-appellants
competency to stand trial, subsequent events should have done so. One month after the prosecution rested its
case, the Jail Warden of Dagupan City wrote the trial judge informing him of accused-appellants unusual
behavior and requesting that he be examined at the hospital to determine whether he should remain in jail or
be placed in some other institution. The trial judge ignored this letter. One year later, accused-appellants
counsel filed a Motion to Confine Accused for Physical, Mental and Psychiatric Examination. Attached to this
motion was a second letter by the new Jail Warden of Dagupan City accompanied by a letter-complaint of the
members of the Bukang Liwayway Association of the city jail. Despite the two (2) attached letters,[81] the judge
ignored the Motion to Confine Accused for Physical, Mental and Psychiatric Examination. The records are
barren of any order disposing of the said motion. The trial court instead ordered accused-appellant to present
his evidence.[82]
Dr. Gawidan testified that the illness of accused-appellant, i.e., schizophrenia, paranoid type, is a lifetime
illness and that this requires maintenance medication to avoid relapses.[83] After accused-appellant was
discharged on February 22, 1993, he never returned to the hospital, not even for a check-up.[84]
Accused-appellant did not take the witness stand. His counsel manifested that accused-appellant was waiving
the right to testify in his own behalf because he was suffering from mental illness.[85] This manifestation was
made in open court more than two (2) years after the crime, and still, the claim of mental illness was ignored by
the trial court. And despite all the overwhelming indications of accused-appellants state of mind, the judge
persisted in his personal assessment and never even considered subjecting accused-appellant to a medical
examination. To top it all, the judge found appellant guilty and sentenced him to death!
Section 12, Rule 116 of the 1985 Rules on Criminal Procedure speaks of a mental examination.[86] The human
mind is an entity, and understanding it is not purely an intellectual process but depends to a large degree upon
emotional and psychological appreciation.[87] Thus, an intelligent determination of an accuseds capacity for
rational understanding ought to rest on a deeper and more comprehensive diagnosis of his mental condition
than laymen can make through observation of his overt behavior. Once a medical or psychiatric diagnosis is
made, then can the legal question of incompetency be determined by the trial court. By this time, the accuseds
abilities may be measured against the specific demands a trial will make upon him.[88]
If the mental examination on accused-appellant had been promptly and properly made, it may have served a
dual purpose[89] by determining both his competency to stand trial and his sanity at the time of the offense. In
some Philippine cases, the medical and clinical findings of insanity made immediately after the commission of
the crime served as one of the bases for the acquittal of the accused.[90] The crime in the instant case was
committed way back in December 1994, almost six (6) years ago. At this late hour, a medical finding alone
may make it impossible for us to evaluate appellants mental condition at the time of the crimes commission for
him to avail of the exempting circumstance of insanity.[91] Nonetheless, under the present circumstances,
accused-appellants competence to stand trial must be properly ascertained to enable him to participate in his
trial meaningfully.
By depriving appellant of a mental examination, the trial court effectively deprived appellant of a fair trial. The
trial courts negligence was a violation of the basic requirements of due process; and for this reason, the
proceedings before the said court must be nullified. In People v. Serafica,[92] we ordered that the joint decision
of the trial court be vacated and the cases remanded to the court a quo for proper proceeding. The accused,
who was charged with two (2) counts of murder and one (1) count of frustrated murder, entered a plea of guilty
to all three charges and was sentenced to death. We found that the accuseds plea was not an unconditional
admission of guilt because he was not in full possession of his mental faculties when he killed the victim; and
thereby ordered that he be subjected to the necessary medical examination to determine his degree of insanity
at the time of commission of the crime.[93]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 44, Dagupan City in Criminal Case
No. 94-00860-D convicting accused-appellant Roberto Estrada and sentencing him to death is vacated and the
case is remanded to the court a quo for the conduct of a proper mental examination on accused-appellant, a
determination of his competency to stand trial, and for further proceedings.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Vitug, J., on official leave.

[1]
The decision was penned by Judge Crispin C. Laron.
[2]
Records, p. 1.
[3]
Id., pp. 13-14.
[4]
Id., p. 16.
[5]
Id., p. 19.
[6]
TSN of January 19, 1995, pp. 4-5.
[7]
Id., pp. 6-10; Exhibit E, Records, pp. 6-7.
[8]
TSN of January 20, 1995, pp. 3-13; Exhibit G, Records, p. 5.
[9]
Exhibit B, Records, p. 36.
[10]
Exhibit A, Records, p. 35.
[11]
Records, pp. 45-48.
[12]
Id., pp. 51-52.
[13]
Id., p. 49.
[14]
Id., p. 56.
[15]
Id., pp. 62-63.
[16]
Id., pp. 92-93.
[17]
Exhibit 16, Records, pp. 95 and 96.
[18]
Exhibit 15, Records, p. 94.
[19]
Records, p. 75.
[20]
TSN of November 26, 1996, pp. 2-28.
[21]
Exhibits 1 to 14, Records, pp. 50, 107-128.
[22]
Exhibit 1, Records, p. 50.
[23]
TSN of November 26, 1996.
[24]
Exhibit 2, Records, p. 107.
[25]
Exhibit 3, Records, p. 113.
[26]
Exhibit 4, Records, p. 114.
[27]
Exhibit 5, Records, p. 115;
[28]
Exhibit 6, Records, p. 116.
[29]
Exhibits 7 and 14, Records, pp. 117 and 128.
[30]
Exhibit 8, Records, pp. 118-119.
[31]
Exhibit 9, Records, pp. 120-121.
[32]
Exhibit 10, Records, pp. 122-123.
[33]
Exhibit 11, Records, p. 123.
[34]
Exhibits 12 and 13, Records, pp. 124-127.
[35]
Records, p. 204.
[36]
Brief for Accused-Appellant, p. 1, Rollo, p. 36.
[37]
Article 4, Revised Penal Code.
[38]
Reyes, Revised Penal Code, Bk. I, pp. 37-38 [1981 ed.].
[39]
V. Francisco, The Revised Penal Code, Bk. I, p. 4 [1958].
[40]
Please see Guevaras Commentaries on the Revised Penal Code, 5th ed., pp. 5-6 [1957].
[41]
Article 3, Revised Penal Code; see also Reyes, supra, at 39-40; People v. Renegado, 57 SCRA 275, 286 [1974];
United States v. Ah Chong, 15 Phil. 488, 495 [1910].
[42]
Francisco, supra.
[43]
Article 800, Civil Code.
[44]
United States v. Gloria, 3 Phil. 333, 335; also cited in Guevara, 5th ed., p. 6; see also Francisco, supra, at 32.
[45]
People v. Sia Teb Ban, 54 Phil. 52 [1929]; see People v. Renegado, supra.
[46]
People v. Renegado, supra.
[47]
See People v. Austria, 260 SCRA 106, 121 [1996]; People v. Bonoan, 64 Phil. 87, 100 [1937]; United
States v. Guendia, 37 Phil. 345-346 [1917].
[48]
People v. Ambal, 100 SCRA 325, 333 [1980]; People v. Renegado, supra; People v. Cruz, 109 Phil. 288, 292 [1960];
People v. Formigones, 87 Phil. 658, 661 [1950] quoting Guevaras Commentaries on the Revised Penal Code, 4th ed., pp.
42-43 citing the Decisions of the Supreme Court of Spain interpreting Article 8, par. 1 of the old Penal Code of Spain.
[49]
People v. Torres, 3 CAR 9 (2s) 43, cited in Padilla, Criminal Law, Bk. I, pp. 340-341 [1987].
[50]
People v. Renegado, supra, at 286; People v. Puno, 105 SCRA 151, 158-159 [1981]; People v. Formigones, supra, at
661.
[51]
People v. Renegado, supra, at 286; People v. Puno, supra, at 158.
[52]
People v. Austria, 260 SCRA 106, 117 [1996]; People v. Puno, supra, at 158; United States v. Guevara, 27 Phil. 547,
550 [1914].
[53]
[54]
Id.
[55]
People v. Bonoan, supra, at 93-94.
[56]
People v. Bonoan, supra, at 93; People v. Austria, 260 Phil. 106, 117 [1996
[57]
Exhibit E, Records, pp. 6-7.
[58]
[59]
In the landmark case of United States v. Guendia, 37 Phil. 337, 345 [1917], it was declared that:
"x x x [W]hen a judge of first instance is informed or discovers that an accused person is apparently in a present condition
of insanity or imbecility, it is within his discretion to investigate the matter, and if it be found that by reason of any such
affliction the accused could not, with the aid of his counsel, make a proper defense, it is the duty of the court to suspend
the proceedings and commit the accused to a proper place of detention until his faculties are recovered. If, however, such
investigation is considered unnecessary, and the trial proceeds, the court will acquit the accused if he be found exempt
from criminal responsibility by reason of imbecility or lunacy. In such case an order for his commitment to an asylum
should be made pursuant to the provisions of paragraph 2 of article 8 (1) of the Penal Code [now par. 2, Article 12 (1)]."
[60]
United States v. Guendia, 37 Phil. 337, 345 [1917]; also cited in Francisco, Criminal Procedure, p. 330 [1996] and
Herrera, Remedial Law, vol. 4, pp. 384-385 [1992].
[61]
Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems," 45 Univ.of Chicago
Law Review 21-22 [1977]. The term present insanity was used in the case of Youtsey v. United States, 97 F. 937 [1899]
to distinguish it from insanity at the time of commission of the offense.
[62]
21 Am Jur 2d, Criminal Law, Sec. 97 [1981 ed.]; LaFave and Scott, Criminal Law, p. 333, 2d ed. [1986]; del Carmen,
Criminal Procedure, Law and Practice, pp. 395-396, 3rd ed. [1995]; Ferdico, Criminal Procedure for the Criminal Justice
Professional, pp. 55-56, 7th ed. [1999].
[63]
Id.
[64]
21 Am Jur 2d, Criminal Law, Sec. 96; see list of cases therein; see also Raymond and Hall, California Criminal Law
and Procedure, p. 230 [1999].
[65]
Id; see also LaFave and Scott, supra, at 333; Weihofen, Mental Disorder as a Criminal Defense, 430 [1954]. Long
before legislation on competency to stand trial, the case of Youtsey v. United States, 97 F. 937 [1899] recognized that a
federal court had the same wide discretion established by the common law when the question of present insanity was
presentedUnited States v. Sermon, 228 F. Supp. 972, 982 [1964].
[66]
Dusky v. United States, 362 US 402, 4 L ed 2d 824, 825, 80 S Ct 788 [1960]. This is commonly referred to as the
Dusky standardLaFave and Scott, supra, at 334-335, Note 26.
[67]
LaFave and Scott, supra.; see also Notes: "Incompetency to Stand Trial," 81 Harvard Law Review, 454, 459 [Dec.
1967].
[68]
LaFave and Scott, supra, at 334.
[69]
State v. Swails, 223 La 751, 66 So. 2d 796, 799 [1953].
[70]
In re Buchanan, 129 Cal. 360, 61 P. 1120, 1121 [1900]; State v. Swails, supra; see also Weihofen, Mental Disorder as
a Criminal Defense, p. 429 [1954].
[71]
Pate v. Robinson, 383 US 375, 15 L ed 2d 815, 822, 86 S Ct 836 [1966].
[72]
21 Am Jur 2d, Criminal Law, Sec. 95 [198 ed.]; Youtsey v. United States, 97 Fed. 937, 940-946 [CA6 1899];
Drope v. Missouri, 420 U.S. 162, 43 L ed 2d 103, 113-114, 95 S Ct 896 [1975]; Pate v. Robinson, 383 U.S. 815, 15 L ed
2d 815, 822, 86 S Ct 836 [1966]; see also Weihofen, supra, at 429-430.
[73]
Notes: "Incompetency to Stand Trial," 81 Harv. L. Rev. 454 [1967].
[74]
Id., at 457-459; see also LaFave and Scott, supra, at 334-335.
[75]
21 Am Jur 2d, Criminal Law, Sec. 103 [1981 ed.].
[76]
The term reasonable doubt was used in Drope v. Missouri, supra, at 118; see also LaFave and Scott, supra, Note 34, at
335-336.
[77]
In Pate v. Robinson, supra, at 822, the court used the term bona fide doubt as to defendants competence; see
also LaFave and Scott, supra, Note 34, at 335-336.
[78]
21 Am Jur 2d, Criminal Law, Sec. 104 [1981 ed.]; Drope v. Missouri, supra, at 118; Pate v. Robinson, supra, at 822.
[79]
Order dated January 6, 1995, Records, p. 16.
[80]
See Second Order of January 6, 1995, Records, p. 19.
[81]
The two (2) attached letters were submitted as part of appellants evidence and were admitted by the trial court without
objection from the public prosecutor -- Exhibits 15 and 16, Records, pp. 94-96.
[82]
Order dated September 18, 1996, Records, p. 75.
[83]
TSN of November 26, 1996, p. 27. In People v. Austria, 260 SCRA 106, 116-117 [1996], schizophrenia was defined as
a chronic mental disorder, and that a paranoid type of schizophrenia was characterized by unpleasant emotional
aggressiveness and delusions of persecution by the patient quoting Encyclopedia and Dictionary of Medicine and Nursing,
Miller-Keane, p. 860 and Noyes Modern Clinical Psychiatry, 7th ed., pp. 380-381.
[84]
Id.
[85]
See Order dated May 5, 1997, Records, p. 184.
[86]
The rule on suspension of arraignment for mental examination of the accuseds mental condition first appeared in the
1985 Rules on Criminal Procedure. The 1917 case of U.S. v. Guendia did not mention mental examination.
[87]
Notes: "Incompetency to Stand Trial," 81 Harv. L. Rev. 454, 470 [1967].
[88]
Id; Gunther v. United States, 215 F. 2d 493, 496-497 (D.C. Cir. 1954)While expert psychiatric judgment is relevant to
determine a defendants competence to stand trial, it is not controlling. Resolution of this issue requires not only a clinical
psychiatric judgment but also a judgment based upon a knowledge of criminal trial proceedings that is peculiarly within
the competence of the trial judge; see also United States v. Sermon, 228 F. Supp. 972, 976-977 ( W.D. Mo. 1964).
[89]
See Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 Univ. of Chicago
L. Rev. 21, 38, Note 84 [1977]dual purpose examinations are the customary practice in the U.S.
[90]
People v. Austria, 260 SCRA 106 [1996]the medical examination was conducted 1 years after the crimes commission;
People v. Bonoan, 64 Phil. 82 [1937]the examinations were conducted 1 to 6 months after the crime; People vs. Bascos,
44 Phil. 204 [1922] --the medical exam was conducted immediately after commission of the crime.
[91]
See People v. Balondo, 30 SCRA 155, 160 [1969].
[92]
29 SCRA 123 [1969].
[93]
Id., at 129.
 

 
 EN BANC

[G.R. No. 134362. February 27, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELITO SITCHON y TAYAG, accused-
appellant.

DECISION
KAPUNAN, J.:

For beating to death the two-year old son of his common-law wife, accused-appellant Emelito
Sitchon y Tayag was convicted of murder and sentenced to death by the Regional Trial Court of Manila. His
case is now before this Court on automatic review.
Appellant was charged in an information stating:

That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and use
personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2 years old, by then and there
mauling and clubbing him on the different parts of his body with the use of a steel hammer and a wooden stick,
approximately 18 inches long, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause
of his death thereafter.

CONTRARY TO LAW.[1]

Appellant pleaded not guilty to the above charge.[2] However, before testifying in his own defense on June
4, 1998, appellant admitted that he killed the victim and changed his plea to guilty.[3]
Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old
brother Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal officer
of the National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the same agency.
Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street,
Tondo, Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house.
At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children
when she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in tow. The open
door of the upper floor allowed Lilia to witness appellant beating two-year old Mark Anthony Fernandez. From
a distance of less than three arms length, Lilia saw appellant hit various parts of the boys body with a piece of
wood, about 14 inches in length and 2 inches in diameter. Appellant also banged the head of the boy against
the wooden wall.
The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring
him to the hospital. The two-year old was already black and no longer moving.[4]
Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to
Roberto, Macky had scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito, thus
beat Macky with a belt, a hammer and a 2x2 piece of wood. Roberto could not do anything to help his brother
because he was afraid Kuya Chito might also beat him up. When Kuya Chito brought Macky to the hospital, his
little brother, who could barely talk, was not crying anymore.[5]
Roberto identified the two pieces of wood[6] that appellant allegedly used in beating the victim. He also
identified the T-shirt[7] that Macky wore when he died.
 A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had
been admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He observed that
the child had wounds on the left middle finger, the right index finger and both feet. The child also had
lacerations in the upper lip and contusions all over his head and body.
PO3 Javier proceeded to appellants house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and
fresh blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks, the steel
hammer,[8]which were allegedly used to beat up the boy, as well as a bloodstained white T-shirt.
PO3 Javier then went to the house of appellants sister in Del Fierro St., Tondo, who informed him of
matters relative to appellants identification. Thereafter, the police conducted a search operation
in Cavite where appellants mother lived but they did not find him there. Later that afternoon, PO3 Javier
learned that appellant had surrendered to Station 3 of their district.
The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3
Javier a brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez, the victims
brother, had given the belt to the staff member.[9]
Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the
victims body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries, including three
wounds at the head and the anterior chest, which could have been inflicted with the use of blunt objects such
as a piece of wood or a fist. The child could have been dead three to four hours, or not more than eight hours,
prior to the postmortem examination. Dr. Lagonera concluded that the victim died of bilateral pneumonia
secondary to multiple blunt traversal injuries or complication of the lungs due to said injuries.[10] The autopsy
report of Dr. Lagonera shows that Mark Anthony Fernandez sustained the following injuries:

EXTERNAL FINDINGS:

1. Multiple old scars, forehead.

2. Healing lacerated wound, left forehead.
3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm.
4. Healed linear abrasions, left cheek.
5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3 cm.
6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms.
7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm.
8. Contussion (sic), left jaw, measuring 1.5x1 cm.
9. Contussion (sic), right anterior thorax, measuring 17x12 cms.
10. Contussion (sic), right anterior forearm.
11. Lacerated wound, tip of the forefinger, right.
12. Old scar, upper 3rd , right anterior thigh.
13. Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms.
14. Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms.
15. Hematoma, big toe, under the nail bed, right.
16. Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms.
17. Contussion (sic), left posterior thorax, measuring 17x6 cms.
18. Contussion (sic), right postero-lateral thorax, extending up to the right lumbar region, measuring
13x6 cms.
19. Contussion (sic), right posterior forearm, measuring 24x8 cms.
 20. Contussion (sic), left posterior forearm, measuring 22x7 cms.
21. Healing abrasion, right buttocks, measuring 2x0.5 cm.
22. Plucked finger nail, left middle finger, with hematoma of the nail bed.
23. Posterior hand, both swollen.

INTERNAL FINDINGS:

1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-occipital
region.
2. Hematoma over the sternum and pectoralis muscles.
3. Both lungs showed patcy and confluent consolidations.
4. Small amount of rice porridge was recovered from the stomach.[11]
Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and
grouping of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were sent to his
office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila.[12] She prepared
Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for human blood but
insufficient for blood group. Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-shirt) were also
positive for human blood showing reactions of Group A.[13]
Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted killing
the two-year old victim, the son of his live-in partner. He and the boys mother had lived together for two years
before the incident, starting when the boy was about a year old. He claimed he enjoyed a harmonious
relationship with his partner and that he killed the boy only because he was under the influence of shabu,
marijuana and Valium 10 at that time. Appellant professed that he began using drugs in 1974 and that he had
also taken drugs two weeks before the incident.
On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow,
the bed sheets and the curtains. Appellant scolded the boy, Putang-ina ka Macky! Bakit mo ikinalat ng ganyan
ang tae mo? Halika, dadalhin kita sa baba para hugasan! Appellant got hold of Macky but the boy struggled to
free himself from appellants grasp. Appellant, still reeling from the Valium 10 he had just taken, became so
angry that he picked up a broom with a wooden handle, and hit the boy. Appellant did not realize that he had
hit Macky hard until he saw the boy sprawled on the floor, breathing with difficulty. He dressed Macky and
brought him to the Galang Medical Centerat the corner of Abad Santos Avenue and Tayabas
Street, Manila. He prayed to God that nothing serious would happen to the boy.
A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to
save the child; otherwise, he would be in serious trouble. After examining the child, the doctor told appellant
that she could not do anything more Macky was dead. The same day, appellant surrendered to the police. He
was brought to the Homicide Section at 3:00 p.m.
Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He reiterated
that he was under the influence of drugs, which he had taken one after the other. He was a drug dependent
and, in fact, had been confined at the Tagaytay Rehabilitation Center. He said he was conscious when the
incident happened but he simply did not realize that he had hit the child hard with the brooms wooden
handle. He denied having hit the boy with a hammer or having banged his head against the wall. He hoped the
trial court would be lenient with him because of his voluntary surrender. He prayed that the court would not
impose upon him the death penalty.[14]
Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which
reads:

WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of the crime of
murder and is sentenced to suffer the death penalty and to pay the costs. The accused is further ordered to pay the mother
of the victim Christina Tabora, moral and nominal damages in the respective sums of P100,000.00 and P50,000.00, plus
death compensation in the sum of P50,000.00, with interest thereon at the legal rate from this date until fully paid.

SO ORDERED.[15]

The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony
Fernandez. Appellants guilt was adequately established by the testimonies of Lilia Garcia and Roberto
Fernandez, who both saw appellant beat Macky. These testimonies were further corroborated by those of PO3
Paul Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of object
evidence. Indeed, appellant in open court admitted beating the poor child, which beating resulted in the latters
death.
That appellant purportedly did not intend to kill the toddler would not exculpate him from liability. Article
4(1) of the Revised Penal Code provides that criminal liability shall be incurred by any person committing a
felony (delito) although the wrongful act done be different from that which he intended. The rationale of the rule
is found in 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).[16]
Thus, where the accused violently kicked the sleeping victim in vital parts of the latters body, the accused
is liable for the supervening death as a consequence of the injuries.[17] Assuming, therefore, that appellant
merely intended to inflict physical injuries upon the boy, he is nevertheless liable for the death of the victim
caused by such injuries.
The killing in this case was attended by treachery. There is treachery when the offender commits any of
the crimes against persons, employing means, methods or forms in the execution thereof which tend directly
and especially to insure its execution without risk to himself arising from the defense which the offended party
might make.[18] It is beyond dispute that the killing of minor children who, by reason of their tender years, could
not be expected to put up a defense, is treacherous.[19]
Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution must
prove: (a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating that he
clung to his determination; and (c) sufficient lapse of time between the decision and the execution to allow the
accused to reflect upon the consequence of his act.[20] The prosecution failed to establish any of these
requisites.
The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an
aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by
causing another wrong not necessary for its commission, or inhumanly increased the victims suffering or
outraged or scoffed at his person or corpse.[21] The nature of cruelty lies in the fact that the culprit enjoys and
delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is
unnecessary for the consummation of the criminal act which he intended to commit.[22] The sheer number of
wounds, however, is not a test for determining whether cruelty attended the commission of a crime.[23]
The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate force
employed by appellant appears to have been caused not by any sadistic bend but rather by the drugs that
diminished his capacity.
The trial court also considered intoxication as an aggravating circumstance. The Solicitor General defends
this ruling, contending that appellants habitual drug addiction is an alternative circumstance analogous to
habitual intoxication under Article 15 of the Revised Penal Code:

Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony;
but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance.

The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating circumstances,
which work to reduce the accuseds penalty. Article 13(10) allows courts to consider any other circumstance of
a similar nature and analogous to those mentioned therein. Neither Article 14 of the same Code on aggravating
circumstances[24] nor Article 15 on alternative circumstances,[25] however, contain a provision similar to Article
13(10). Accordingly, the Court cannot consider appellants drug addiction as an aggravating
circumstance. Criminal statutes are to be strictly construed and no person should be brought within their terms
who is not clearly within them.[26]
Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said
in People v. Ramos:[27]

To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first opportunity, indicating
repentance on the part of the accused. In determining the timeliness of a plea of guilty, nothing could be more explicit
than the provisions of the Revised Penal Code requiring that the offender voluntarily confess his guilt before the court
prior to the presentation of the evidence for the prosecution. It is well-settled that a plea of guilty made after arraignment
and after trial had begun does not entitle the accused to have such plea considered as a mitigating circumstance.

As appellant changed his plea only after the prosecution had rested its case and just when he was just about
to testify, said mitigating circumstance is unavailing.
The trial court credited appellant with the mitigating circumstance of voluntary surrender. For voluntary
surrender to be appreciated, these elements must be established: (1) the offender has not been actually
arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3) his
surrender was voluntary.[28] It is sufficient that the surrender be spontaneous and made in a manner clearly
indicating the intent of the accused to surrender unconditionally, either because he acknowledges his guilt or
he wishes to save the authorities the trouble and expense which will necessarily be incurred in searching for
and capturing him.[29]
Appellant has failed to adequately prove voluntary surrender. While he claimed that he surrendered to the
police on the same day that the victim was killed, he did not detail the circumstances like the time and place of
such surrender. Neither did appellant state to whom he surrendered. He did not indicate if the person was a
person in authority or an agent of the latter. PO3 Javiers testimony that he learned of appellants alleged
surrender is hearsay and does not serve to corroborate appellants claim.
The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against his
victim. Appellants intention was merely to maltreat the victim, not to kill him. When appellant realized the
horrible consequences of his felonious act, he immediately brought the victim to the hospital.[30] Sadly, his
efforts were for naught.
In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is qualified
to murder, punishable under Article 248 of the Revised Penal Code by reclusion perpetua to death. The
murder was attended by the mitigating circumstance of lack of intention to commit so grave a wrong and there
is no aggravating circumstance. Hence, the lesser penalty of reclusion perpetua must be imposed upon
appellant.[31]
Appellant is liable for civil indemnity of P50,000.00 without proof of damages.[32] Moral damages that are
recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot be awarded
here as the prosecution did not present any evidence to justify its award.[33]
WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of
Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer the
penalty ofreclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil indemnity in the
amount of P50,000.00.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Buena, Ynares-
Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

[1] Records, p. 1.
[2] Id., at 17.
[3]
TSN, June 4, 1998, p. 3.
[4]
TSN, October 15, 1996, pp. 2-11.
[5]
TSN, October 29, 1996, pp. 14-19.
[6]
Exhs. F and F-1.
[7] Exh. H.
[8] Exh. G.
[9] TSN, October 29, 1996, pp. 3-11.
[10] TSN, November 12, 1996, pp. 2-5.
[11] Exh. "K."
[12] Exh. "I."
[13]
Exh. N.
[14]
TSN, June 4, 1998, pp. 4-9.
[15]
Records, p. 111.
[16]
People vs. Ural, 56 SCRA 138 (1974).
[17]
People vs. Flores, 252 SCRA 31 (1996).
[18] REVISED PENAL CODE, ARTICLE 14 (16).
[19] People vs. Palomar, 278 SCRA 114 (1997); People vs. Gonzales, 311 SCRA 547 (1999).
[20] People v. Bias, 320 SCRA 22 (1999).
[21] People v. Iligan, 369 Phil. 1005 (1999).
[22] People v. Tanzon, 320 SCRA 762 (1999).
[23] People vs. Panida, 310 SCRA 66 (1999).
[24]
ART. 14. Aggravating circumstances. The following are aggravating circumstances:
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt of or with insult to the public authorities.
3. That the act be committed with insult or in disregard of the respect due to the offended party on account of
his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter has not
given provocation.
4. That the act be committed with abuse of confidence or obvious ungratefulness.
5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where public
authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.
6. That the crime be committed in the nighttime, or in an uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted together in the commission of an offense, it
shall be deemed to have been committed by a band.
7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic, or other
calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons who insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of this Code.
10. That the offender has been previously punished for an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which it attaches a lighter penalty.
11. That the crime be committed in consideration of a price, reward, or promise.
12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or
intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving
great waste and ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strength, or means be employed to weaken the defense.
16. That the act be committed with treachery (alevosia).
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 specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.
17. That means be employed or circumstances brought about which add ignominy to the natural effects of the
act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a way not intended for the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door, or window be broken.
20. That the crime be committed with the aid of a persons under fifteen years of age or by means of motor
vehicles, motorized watercraft, airships, or other similar means.
21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not
necessary for its commission.
[25] ART. 15. The concept. Alternative circumstances are those which must be taken into consideration as
aggravating or mitigating according to the nature and effects of the crime and the other conditions
attending its commission. They are the relationship, intoxication and the degree of instruction and
education of the offender.
The alternative circumstance of relationship shall be taken into consideration when the offended
party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative
by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into consideration as a mitigating circumstance
when the offender has committed a felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional, it shall
be considered as an aggravating circumstance.
[26]
United States vs. Abad Santos, 36 Phil. 243 (1917).
[27] 296 SCRA 559 (1998).
[28] People v. Aquino, 314 SCRA 543 (1999).
[29] People v. Sambulan, 289 SCRA 500 (1998); People v. Ramos, supra.
[30] People vs. Ural, supra.
[31] REVISED PENAL CODE, ARTICLE 63(3).
[32] People v. Borreros, 306 SCRA 680 (1999). [33] People v. Langres, 316 SCRA 769 (1999).
 EN BANC

[G.R. No. 140756. April 4, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN GONZALES ESCOTE, JR. @ Jun Mantika of
Sta. Lucia, Angat, Bulacan and VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo of Sto. Nio,
Poblacion, Bustos, Bulacan, accused-appellants.

DECISION
CALLEJO, SR., J.:

Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a generic
aggravating circumstance in said crime if the victim of homicide is killed treacherously. The Supreme Court of
Spain so ruled.So does the Court rule in this case, as it had done for decades.
Before the Court on automatic review is the Decision[1] of Branch 11 of the Regional Trial Court of Bulacan
in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan of
the complex crime of robbery with homicide, meting on each of them the supreme penalty of death, and
ordering them to pay the heirs of the victim, SPO1 Jose C. Manio, Jr., the total amount of P300,000.00 by way
of actual and moral damages and to pay to Five Star Bus, Inc., the amount of P6,000.00 by way of actual
damages.

The Facts

The antecedent facts as established by the prosecution are as follows:

On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star Passenger Bus
bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its destination in Bolinao,
Pangasinan. Also on board was Romulo Digap, the regular conductor of the bus, as well as some
passengers. At Camachile, Balintawak, six passengers boarded the bus, including Victor Acuyan and Juan
Gonzales Escote, Jr. who were wearing maong pants, rubber shoes, hats and jackets.[2] Juan seated himself
on the third seat near the aisle, in the middle row of the passengers seats, while Victor stood by the door in the
mid-portion of the bus beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles
City, was seated at the rear portion of the bus on his way home to Angeles City. Tucked on his waist was his
service gun bearing Serial Number 769806. Every now and then, Rodolfo looked at the side view mirror as well
as the rear view and center mirrors installed atop the drivers seat to monitor any incoming and overtaking
vehicles and to observe the passengers of the bus.
The lights of the bus were on even as some of the passengers slept. When the bus was travelling along
the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their handguns and
announced a holdup.Petrified, Rodolfo glanced at the center mirror towards the passengers seat and saw Juan
and Victor armed with handguns. Juan fired his gun upward to awaken and scare off the passengers. Victor
followed suit and fired his gun upward. Juan and Victor then accosted the passengers and divested them of
their money and valuables. Juan divested Romulo of the fares he had collected from the passengers. The
felons then went to the place Manio, Jr. was seated and demanded that he show them his identification card
and wallet. Manio, Jr. brought out his identification card bearing No. 00898.[3] Juan and Victor took the
identification card of the police officer as well as his service gun and told him: Pasensya ka na Pare, papatayin
ka namin, baril mo rin and papatay sa iyo. The police officer pleaded for mercy: Pare maawa ka sa akin. May
pamilya ako. However, Victor and Juan ignored the plea of the police officer and shot him on the mouth, right
ear, chest and right side of his body. Manio, Jr. sustained six entrance wounds. He fell to the floor of the
bus. Victor and Juan then moved towards the driver Rodolfo, seated themselves beside him and ordered the
latter to maintain the speed of the bus. Rodolfo heard one of the felons saying: Ganyan lang ang pumatay ng
tao. Parang pumapatay ng manok. The other said: Ayos na naman tayo pare. Malaki-laki ito. Victor and Juan
further told Rodolfo that after they (Victor and Juan) shall have alighted from the bus, he (Rodolfo) should
continue driving the bus and not report the incident along the way. The robbers assured Rodolfo that if the
latter will follow their instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the bus along
the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was over in 25 minutes.
When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith reported the incident to
the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral parlor where Dr. Alejandro D.
Tolentino, the Municipal Health Officer of Mabalacat, Pampanga, performed an autopsy on the cadaver of the
police officer. The doctor prepared and signed an autopsy report detailing the wounds sustained by the police
officer and the cause of his death:

Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance wounds and 6 exit wounds. All
the entrance were located on his right side. An entrance (0.5 cm x 0.5 cm.) located infront of the right ear exited at the left
side just below the ear lobe. Another entrance through the mouth exited at the back of the head fracturing the occiput with
an opening of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered at the upper right
cornea of the sternum, entered the chest cavity pierced the heart and left lung and exited at the left axillary line. Severe
hemorrhage in the chest cavity came from the heart and left lung. The other 3 bullets entered the right side and exited on
the same side. One entrance at the top of the right shoulder exited at the medial side of the right arm. The other entered
above the right breast and exited at the right lateral abdominal wall travelling below muscles and subcutaneous tissues
without entering the cavities. Lastly another bullet entered above the right iliac crest travelled superficially and exited
above the right inguinal line.

Cause of Death:

Shock, massive internal and external hemorrhage, complete brain destruction and injury to the heart and left lung caused
by multiple gunshot wounds.[4]

Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the robbery
and gave their respective sworn statements.[5] SPO1 Manio, Jr. was survived by his wife Rosario Manio and
their four young children. Rosario spent P20,000.00 for the coffin and P10,000.00 for the burial lot of the slain
police officer.[6] Manio, Jr. was 38 years old when he died and had a gross salary of P8,085.00 a month.[7]
Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses, the team
leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at the police checkpoint
along the national highway in Tarlac, Tarlac. At the time, the Bambang-Concepcion bridge was closed to traffic
and the police officers were tasked to divert traffic to the Sta. Rosa road. Momentarily, a white colored taxi cab
without any plate number on its front fender came to view. Meneses stopped the cab and asked the driver, who
turned out to be the accused Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses that he
was a policeman and handed over to Meneses the identification card of SPO1 Manio, Jr. and the money which
Juan and Victor took from Manio, Jr. during the heist on September 28, 1996.[8] Meneses became suspicious
when he noted that the identification card had already expired on March 16, 1995. He asked Juan if the latter
had a new pay slip. Juan could not produce any. He finally confessed to Meneses that he was not a
policeman. Meneses brought Juan to the police station. When police officers frisked Juan for any deadly
weapon, they found five live bullets of a 9 millimeter firearm in his pocket. The police officers confiscated the
ammunition. In the course of the investigation, Juan admitted to the police investigators that he and Victor,
alias Victor Arroyo, staged the robbery on board Five Star Bus and are responsible for the death of SPO1
Manio, Jr. in Plaridel, Bulacan. Meneses and Ferrer executed their joint affiavit of arrest of Juan.[9] Juan was
subsequently turned over to the Plaridel Police Station where Romulo identified him through the latters picture
as one of those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and killed SPO1
Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel Police Station Investigators
learned that Victor was a native of Laoang, Northern Samar.[10] On April 4, 1997, an Information charging Juan
Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed with the Regional Trial Court of
Bulacan. The Information reads:
That on or about the 28th day of September 1996, in the municipality of Plaridel, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and
mutually helping each other, armed with firearms, did then and there wilfully, unlawfully and feloniously, with intent of
(sic) gain and by means of force, violence and intimidation, take, rob and carry away with one (1) necklace and cash in
[the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and prejudice of the said owner in the said
undetermine[d] amount; that simultaneously or on the occassion (sic) of said robbery, said accused by means of violence
and intimidation and in furtherance of their conspiracy attack, assault and shoot with the service firearm of the said SPO1
Jose C. Manio, Jr., thereby inflicting serious physical injuries which resulted (sic) the death of the said SPO1 Jose C.
Manio, Jr.

Contrary to law.[11]

On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern Samar and
had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio, their counsel de parte,
Juan and Victor were duly arraigned and entered their plea of not guilty to the charge. Trial thereafter
ensued. After the prosecution had rested its case on August 26, 1998, Juan escaped from the provincial
jail.[12] The trial court issued a bench warrant on September 22, 1998 for the arrest of said accused-
appellant.[13] In the meantime, Victor adduced his evidence.
Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked as a tire
man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy Negro. On one occasion,
Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a tire. Victor sold the tire but did not turn
over the proceeds of the sale to Ilarde. The latter hated Victor for his misdeed. The shop was later demolished
and after two months of employment, Victor returned to Barangay Muwal-Buwal, Laoang, Northern Samar. On
September 26, 1996, at 9:30 p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph
Iringco and Rickey Lorcio were having a drinking spree in the house of Barangay Captain Ike Baluya. At 11:30
p.m., the three left the house of the barangay captain and attended the public dance at the town
auditorium. Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996. Victor likewise
testified that he never met Juan until his arrest and detention at the Bulacan Provincial Jail. One of the inmates
in said provincial jail was Ilarde Victorino. Victor learned that Ilarde implicated him for the robbery of the Five
Star Bus and the killing of SPO1 Manio, Jr. to hit back at him for his failure to turn over to Ilarde the proceeds
of the sale of the latters tire.
On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.[14] However, he no longer adduced
any evidence in his behalf.

The Verdict of the Trial Court

On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty beyond
reasonable doubt of the crime charged, meted on each of them the penalty of death and ordered them to
pay P300,000.00 as actual and moral damages to the heirs of the victim and to pay the Five Star Bus
Company the amount of P6,000.00 as actual damages. The decretal portion of the decision reads:

WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan GUILTY beyond reasonable
doubt of Robbery with Homicide as penalized under Art. 294 of the Revised Penal Code as amended and hereby
sentences both to suffer the supreme penalty of Death and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the
amount of P300,000.00 as actual and moral damages and to pay the Five Star Bus P6,000.00 as actual damage.

SO ORDERED.[15]

Assignment of Errors

Juan and Victor assail the Decision of the trial court and contend that:
 I

THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP, DRIVER AND
CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO
(2) MEN WHO HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT AROUND 3:00 OCLOCK
IN THE EARLY MORNING OF SEPTEMBER 28, 1996.

II

THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF ROBBERY WITH HOMICIDE.[16]

The Courts Verdict

Anent the first assignment of error, Juan and Victor contend that the trial court committed a reversible
error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the crime charged. They
aver that although their counsel was able to initially cross-examine Rodolfo, the former failed to continue with
and terminate his cross-examination of the said witness through no fault of his as the witness failed to appear
in subsequent proceedings. They assert that even if the testimonies of Rodolfo and Romulo were to be
considered, the two witnesses were so petrified during the robbery that they were not able to look at the felons
and hence could not positively identify accused-appellants as the perpetrators of the crime. They argue that
the police investigators never conducted a police line-up for the identification of the authors of the crime.
The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for their claim
that they were illegally deprived of their constitutional and statutory right to fully cross-examine Rodolfo. The
Court agrees that the right to cross-examine is a constitutional right anchored on due process.[17] It is a
statutory right found in Section 1(f), Rule 115 of the Revised Rules of Criminal Procedure which provides that
the accused has the right to confront and cross-examine the witnesses against him at the trial. However, the
right has always been understood as requiring not necessarily an actual cross-examination but merely an
opportunity to exercise the right to cross-examine if desired.[18] What is proscribed by statutory norm and
jurisprudential precept is the absence of the opportunity to cross-examine.[19] The right is a personal one and
may be waived expressly or impliedly. There is an implied waiver when the party was given the opportunity to
confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to
himself alone.[20] If by his actuations, the accused lost his opportunity to cross-examine wholly or in part the
witnesses against him, his right to cross-examine is impliedly waived.[21] The testimony given on direct
examination of the witness will be received or allowed to remain in the record.[22]
In this case, the original records show that after several resettings, the initial trial for the presentation by
the prosecution of its evidence-in-chief was set on November 18, 1997 and December 5, 1997, both at 9:00
a.m.[23] Rodolfo testified on direct examination on November 18, 1997. The counsel of Juan and Victor forthwith
commenced his cross-examination of the witness but because of the manifestation of said counsel that he
cannot finish his cross-examination, the court ordered the continuation thereof to December 5, 1997.[24] On
December 5, 1997, Rodolfo did not appear before the court for the continuation of his cross-examination but
Rosemarie Manio, the widow of the victim did. The prosecution presented her as witness. Her testimony was
terminated. The court ordered the continuation of the trial for the cross-examination of Rodolfo on January 20,
1998 at 8:30 a.m.[25] During the trial on January 20, 1998, Rodolfo was present but accused-appellants counsel
was absent. The court issued an order declaring that for failure of said counsel to appear before the court for
his cross-examination of Rodolfo, Victor and Juan waived their right to continue with the cross-examination of
said witness.[26] During the trial set for February 3, 1998, the counsel of Juan and Victor appeared but did not
move for a reconsideration of the courts order dated January 20, 1998 and for the recall of Rodolfo Cacatian
for further cross-examination. It behooved counsel for Juan and Victor to file said motion and pray that the trial
court order the recall of Rodolfo on the witness stand. Juan and Victor cannot just fold their arms and supinely
wait for the prosecution or for the trial court to initiate the recall of said witness. Indeed, the Court held
in Fulgado vs. Court of Appeals, et al:
xxx

The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said
right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or
failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who
should move to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to schedule the
cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-
examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate
move. Indeed, the rule of placing the burden of the case on plaintiffs shoulders can be construed to extremes as what
happened in the instant proceedings. [27]

The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the non-availability of
the other witnesses of the prosecution.[28] On March 31, 1998, the prosecution presented Dr. Alejandro
Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on April 17, 1998, the counsel of Juan and
Victor failed to appear. The trial was reset to June 3, 19 and 26, 1998.[29] The trial scheduled on June 3, 1998
was cancelled due to the absence of the counsel of Juan and Victor. The court issued an order appointing Atty.
Roberto Ramirez as counsel for accused-appellants.[30]
During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The prosecution
rested its case after the presentation of SPO2 Romeo Meneses and formally offered its documentary
evidence. The next trial was set on September 23, 1998 at 8:30 a.m.[31] On November 11, 1998, Juan and
Victor commenced the presentation of their evidence with the testimony of Victor.[32] They rested their case on
January 27, 1999 without any evidence adduced by Juan.
Juan and Victor did not even file any motion to reopen the case before the trial court rendered its decision
to allow them to cross-examine Rodolfo. They remained mute after judgment was rendered against them by
the trial court.Neither did they file any petition for certiorari with the Court of Appeals for the nullification of the
Order of the trial court dated January 20, 1998 declaring that they had waived their right to cross-examine
Rodolfo. It was only on appeal to this Court that Juan and Victor averred for the first time that they were
deprived of their right to cross-examine Rodolfo. It is now too late in the day for Juan and Victor to do so. The
doctrine of estoppel states that if one maintains silence when in conscience he ought to speak, equity will
debar him from speaking when in conscience he ought to remain silent. He who remains silent when he ought
to speak cannot be heard to speak when he should be silent.[33]
The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify them as
the perpetrators of the crime charged is disbelieved by the trial court, thus:

As can be gathered from the testimonies of the witnesses for the prosecution, on September 28, 1996, the accused boarded
at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian, bound to Pangasinan, in Camachile, Balintawak, Quezon
City.Twenty (20) minutes or so later, when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North
Espressway, the accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the
announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a man seated at the
back. Both then went on to take the money and valuables of the passengers, including the bus conductors collections in
the amount of P6,000.00. Thereafter, the duo approached the man at the back telling him in the vernacular Pasensiya ka na
pare, papatayin ka namin. Baril mo rin ang papatay sa iyo. They pointed their guns at him and fired several shots
oblivious of the plea for mercy of their victim. After the shooting, the latter collapsed on the floor. The two (2) then went
back at the front portion of the bus behind the drivers seat and were overheard by the bus driver, Cacatian, talking how
easy it was to kill a man. The robbery and the killing were over in 25 minutes.Upon reaching the Mexico overpass of the
Expressway in Pampanga, the two (2) got off the bus. The driver drove the bus to the Mabalacat Police Station and
reported the incident. During the investigation conducted by the police, it was found out that the slain passenger was a
policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police Department.

The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor, respectively, of the ill-
fated Five Star Bus.[34]

The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and Victor
suddenly announced a holdup and fired their guns upward, but it does not follow that he and Rodolfo failed to
have a good look at Juan and Victor during the entire time the robbery was taking place. The Court has held in
a catena of cases that it is the most natural reaction of victims of violence to strive to see the appearance of
the perpetrators of the crime and to observe the manner in which the crime was committed.[35] Rodolfo and
Romulo had a good look at both Juan and Victor before, during and after they staged the robbery and before
they alighted from the bus. The evidence on record shows that when Juan and Victor boarded the bus and
while the said vehicle was on its way to its destination, Romulo stationed himself by the door of the bus located
in the mid-section of the vehicle. The lights inside the bus were on. Juan seated himself in the middle row of
the passengers seat near the center aisle while Victor stood near the door of the bus about a meter or so from
Romulo.[36] Romulo, Juan and Victor were near each other. Moreover, Juan divested Romulo of his collection
of the fares from the passengers.[37] Romulo thus had a face-to-face encounter with Juan. After shooting SPO1
Manio, Jr. at the rear portion of the bus, Juan and Victor passed by where Romulo was standing and gave their
instructions to him. Considering all the facts and circumstances, there is no iota of doubt that Romulo saw and
recognized Juan and Victor before, during and after the heist.[38] Rodolfo looked many times on the rear, side
and center view mirrors to observe the center and rear portions of the bus before and during the robbery.
Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio, Jr. with impunity:
xxx
Q So, the announcement of hold-up was ahead of the firing of the gun?
A Yes, sir.
Q And before the actual firing of the gun it was even still said bad words before saying the hold-up?
A After they fired the gun they uttered bad words, sir.
Q Mr. Witness before the announcement of the hold-up you do not have any idea that you will
encounter that nature which took place, is that correct?
A None, sir.
Q Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that was your first
experience of hold-up?
A Yes, sir.
Q And the speed of above 70 kilometers per hour your total attention is focus in front of the road,
correct, Mr. witness?
A Once in a while the driver look at the side mirror and the rear view mirror, sir.
Q Before the announcement there was no reason for you to look at any at the rear mirror, correct, Mr.
witness?
Court:
Every now and then they usually look at the side mirror and on the rear, that was his statement.
Atty. Osorio:
(to the witness)
Q I am asking him if there was no reason for him....
Fiscal:
Before the announcement of hold-up, there was no mention.
Court:
Every now and then.
Atty. Osorio:
(to the witness)
Q When you said every now and then, how often is it, Mr. witness?
A I cannot tell how often but I used to look at the mirror once in a while, sir.
Q How many mirror do you have, Mr. witness?
A Four (4), sir.
Q Where are these located?
A Two (2) on the side mirror, center mirror and rear view mirror, sir.
Q The two side mirror protruding outside the bus?
A Yes, sir, they are in the side of the bus, sir.
Q One of them is located on the left and the other on the right, correct?
A Yes, sir.
Q You only look at the side mirror when you are going to over take, Mr. witness?
A No, sir.
Q Where is this center mirror located, Mr. witness?
A In the center, sir.
Q What is the purpose of that?
A So that I can see the passengers if they are already settled so that I can start the engine, sir.
Q What about the remaining mirror?
A Rear view mirror, sir.
Q What is the purpose and where is it located?
A The rear view is located just above my head just to check the passengers, sir.
Q So that the center mirror and the rear view mirror has the same purpose?
A They are different, sir.
Q How do you differentiate of (sic) one from the other?
A The center mirror is used to check the center aisle while the rear mirror is for the whole view of the
passengers, sir.
Q If you are going to look at any of your side mirrors, you will never see any passengers, correct, Mr.
witness?
A None, sir.
Q If you will look at your center mirror you will only see the aisle and you will never see any portion of
the body of your passengers?
A Yes, sir.
Q Seated passengers?
A It is only focus (sic) on the middle aisle sir.
Q If you look at your rear mirror, you will only see the top portion of the head of your passengers,
correct?
A Only the portion of their head because they have different hight (sic), sir.
Q You will never see any head of your passengers if they were seated from the rear mirror portion,
correct, Mr. witness?
A Yes, sir.
Q Before the announcement of hold-up, all of your passengers were actually sleeping?
A Some of my passengers were sleeping, some were not, sir.
Q But you will agree Mr. witness that when you said every now and then you are using your mirror? It
is only a glance, correct?
A Yes, sir.
Q And by mere glancing, Mr. witness you were not able to identify any person on the basis of any of
your mirror, correct?
A If only a glance but when I look at him I can recognize him, sir.
Q You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by your side
mirror?
A Not all glancing, there are times when you want to recognize a person you look at him intently, sir.
Q The purposes of your mirror inside your Bus is mainly of the safety of your passengers on board, Mr.
witness?
A Yes, sir.
Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify the person particularly
when you are crossing (sic) at a speed of 70 kilometers per hour?
A I do that, sir.
Q How long Mr. witness can you focus your eyes on any of these mirror before getting back your eyes
into the main road?
A Seconds only, sir.
Q When you said seconds, for how long the most Mr. witness that you can do to fix your eyes on any
of your mirrors and the return back of (sic) your eyes into the main road?
A Two seconds, sir.
Q At that time Mr. witness, that you were travelling at about 70 kilometers you were glancing every
now and then on any of your mirrors at about two seconds, correct?
A Yes, sir.
Q And when you heard the announcement of hold-up your natural reaction is to look either at the
center mirror or rear mirror for two seconds, correct?
A Yes, sir.
Q And you were instructed Mr. witness to even accelerate your speed upon the announcement of
hold-up?
A No sir, they just told me to continue my driving, sir.
Fiscal:
May I request the vernacular alalay ka lang, steady ka lang.
Atty. Osorio:
(to the witness)
Q Steady at what speed?
A 70 to 80, sir.
Q What is the minimum speed, Mr. witness for Buses along North Expressway?
A 60 kilometers, sir.
Q Are you sure of that 60 kilometers, minimum? Are you sure of that?
A Yes, sir.
Q That is what you know within the two (2) years that you are driving? Along the North Expressway?
A Yes, sir.
Q And while you were at the precise moment, Mr. witness, you were being instructed to continue
driving, you were not looking to anybody except focus yours eyes in front of the road?
Fiscal:
May I request the vernacular. Nakikiramdam ako.
Atty. Osorio:
(to the witness)
Q Thats what you are doing?
A During the time they were gathering the money from my passengers, that is the time when I look at
them, sir.
Q For two seconds, correct?
A Yes, sir.
Q Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you said you
are nakikiramdam?
A The rear view mirror, sir.
Q The Bus that you were driving is not an air con bus?
A Ordinary bus, sir.
Q And at what time your passengers, most of your passengers were already sleep (sic), Mr. witness?
A Most of my passengers, sir. Some of my passengers were still sleep (sic), sir.
Q And the lights inside the Bus are off, correct Mr. witness?
A The lights were on, sir.
Q While the passengers were sleep (sic) the light was still on, Mr. witness, at the time of the trip.?
A Yes, sir.
Q Now, Mr. witness when the hold-up was announced and then when you look for two seconds in the
rear mirror you were not able to see any one, you were only sensing what is happening inside
your bus?
A I saw something, sir.
Q You saw something in front of your Bus? You can only see inside when you are going to look at the
mirror?
A Yes, sir.
Q That is the only thing that you see every now and then, you said you were looking at the mirror?
A Yes, sir.
Q How many times, Mr. witness did you look Mr. witness at the rear mirror during the entire occurance
(sic) of the alleged hold-up?
A There were many times, sir.
 Q The most that you can remember, please inform the Honorable Court? During the occurance (sic)
of the alleged hold-up, Mr. witness?
A I cannot estimate, sir.
Q How long did the alleged hold-up took place?
A More or less 25 minutes, sir.[39]
When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the robbery,
he described the felons. When asked by the police investigators if he could identify the robbers if he see them
again, Rodolfo declared that he would be able to identify them:
8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa minamaneho
mong bus?
S: Halos magkasing taas, 54 o 55 katam-taman ang pangangatawan, parehong nakapantalon ng
maong naka-suot ng jacket na maong, parehong naka rubber shoes at pareho ring naka
sumbrero.
9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila?
S: Makikilala ko po sila.[40]
When asked to identify the robbers during the trial, Rodolfo spontaneously pointed to and identified Juan
and Victor:
QFiscal:
(to the witness)
xxx
Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the gun are they
inside the Court room (sic) today?
A Yes, maam.
Q Point to us?
Interpreter:
Witness pointing to a man wearing red T-shirt and when asked his name answered Victor Acuyan
and the man wearing green T-shirt and when asked his name answered Juan Gonzales.[41]
For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the culprits when
asked by the prosecutor to identify the robbers from among those in the courtroom:
xxx
Q You said that you were robbed inside the bus, how does (sic) the robbing took place?
A They announced a hold up maam, afterwards, they confiscated the money of the passengers
including my collections.
Q You said they who announced the hold up, whose (sic) these they you are referring to?
A Those two (2), maam.
Interpreter:
Witness pointing to the two accused.
Public Pros.:
May we request that the accused be identified, Your Honor.
Court:
 (to both accused)
What are your names?
A Juan Escote, Your Honor. Victor Acuyan, Your Honor.
Public Pros.:
May we know from the accused if his name is Juan Escote Gonzales because he just said Juan
Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your Honor.[42]
Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac, Juan
was in possession of the identification card[43] of the slain police officer. Juan failed to explain to the trial court
how and under what circumstances he came into possession of said identification card. Juan must necessarily
be considered the author of the robbery and the killing of SPO1 Manio, Jr. In People v. Mantung,[44] we held:

xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal presumption of his
guilt. As this Court has held, [I]n the absence of an explanation of how one has come into possession of stolen effects
belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression
and death of the said person and of the robbery committed on him.

While police investigators did not place Juan and Victor in a police line-up for proper identification by
Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up, their identification by Romulo
and Rodolfo as the authors of the robbery with homicide was unreliable. There is no law or police regulation
requiring a police line-up for proper identification in every case. Even if there was no police line-up, there could
still be proper and reliable identification as long as such identification was not suggested or instigated to the
witness by the police.[45] In this case, there is no evidence that the police officers had supplied or even
suggested to Rodolfo and Romulo the identities of Juan and Victor as the perpetrators of the robbery and the
killing of SPO1 Manio, Jr.

The Felony Committed by Juan and Victor

The Court finds that the trial court committed no error in convicting Juan and Victor of robbery with
homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act 7659, reads:

Art. 294. - Robbery with violence against or intimidation of persons. - Penalties. - Any person guilty of robbery with the
use of violence against or intimidation of any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall
have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson.

To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to prove
the confluence of the following essential elements:

xxx (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus
taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi and (d) on the occasion of the
robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. xxx[46]

The intent to rob must precede the taking of human life.[47] In robbery with homicide, so long as the
intention of the felons was to rob, the killing may occur before, during or after the robbery. In People v.
Barut,[48] the Court held that:

In the controlling Spanish version of article 294, it is provided that there is robbery with homicide cuando con motivo o
con ocasin del robo resultare homicidio. Basta que entre aquel este exista una relacin meramente ocasional. No se requiere
que el homicidio se cometa como medio de ejecucin del robo, ni que el culpable tenga intencin de matar, el delito existe
segn constanta jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte sobreviniere por mero
accidente, siempre que el homicidio se produzca con motivo con ocasin del robo, siendo indiferente que la muerte sea
anterior, coetnea o posterior a ste (2 Cuello Calon, Derecho Penal, 1975 14th Ed. P. 872).

Even if the victim of robbery is other than the victim of the homicide committed on the occasion of or by
reason of the robbery, nevertheless, there is only one single and indivisible felony of robbery with homicide. All
the crimes committed on the occasion or by reason of the robbery are merged and integrated into a single and
indivisible felony of robbery with homicide. This was the ruling of the Supreme Court of Spain on September 9,
1886, et sequiturcited by this Court in People v. Mangulabnan, et al.[49]

We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a
homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November
26, 1892, and January 7, 1878, quoted in 2 Hidalgos Penal Code, p. 267 and 259-260, respectively). This High Tribunal
speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that
the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July
14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only
the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the
commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 see Cuello Calons Codigo
Penal, p. 501-502).

Case law has it that whenever homicide has been committed by reason of or on the occasion of the
robbery, all those who took part as principals in the robbery will also be held guilty as principals of robbery with
homicide although they did not take part in the homicide, unless it appears that they endeavored to prevent the
homicide.[50]
In this case, the prosecution proved beyond reasonable doubt that Juan and Victor conspired and
confabulated together in robbing the passengers of the Five Star Bus of their money and valuables and
Romulo of his collections of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on the
occasion of the robbery. Hence, both Juan and Victor are guilty as principals by direct participation of the
felony of robbery with homicide under paragraph 1, Article 294 of the Revised Penal Code, as amended by R.A.
7659, punishable by reclusion perpetua to death.

The Proper Penalty

The trial court imposed the supreme penalty of death on Juan and Victor for robbery with homicide,
defined in Article 294, paragraph 1 of the Revised Penal Code, punishable with reclusion perpetua. Under
Article 63, paragraph 1 of the Revised Penal Code, the felons should be meted the supreme penalty of death
when the crime is committed with an aggravating circumstance attendant in the commission of the crime
absent any mitigating circumstance. The trial court did not specify in the decretal portion of its decision the
aggravating circumstances attendant in the commission of the crime mandating the imposition of the death
penalty. However, it is evident from the findings of facts contained in the body of the decision of the trial court
that it imposed the death penalty on Juan and Victor on its finding that they shot SPO1 Manio, Jr.
treacherously on the occasion of or by reason of the robbery:
xxx

The two (2) accused are incomparable in their ruthlessness and base regard for human life. After stripping the passengers
of their money and valuables, including the firearm of the victim, they came to decide to execute the latter seemingly
because he was a police officer. They lost no time pouncing him at the rear section of the bus, aimed their firearms at him
and, in a derisive and humiliating tone, told him, before pulling the trigger, that they were rather sorry but they are going
to kill him with his own gun; and thereafter, they simultaneously fired point blank at the hapless policeman who was
practically on his knees begging for his life. Afterwhich, they calmly positioned themselves at the front boasting for all to
hear, that killing a man is like killing a chicken (Parang pumapatay ng manok). Escote, in particular, is a class by himself
in callousness. xxx.[51]
 The Court agrees with the trial court that treachery was attendant in the commission of the crime. There is
treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was
not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular
means, methods or forms of attack employed by him.[52] The essence of treachery is the sudden and
unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend
himself and thereby ensuring its commission without risk of himself. Treachery may also be appreciated even if
the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the
infliction of the coup de grace.[53] In the case at bar, the victim suffered six wounds, one on the mouth, another
on the right ear, one on the shoulder, another on the right breast, one on the upper right cornea of the sternum
and one above the right iliac crest. Juan and Victor were armed with handguns. They first disarmed SPO1
Manio, Jr. and then shot him even as he pleaded for dear life.When the victim was shot, he was
defenseless. He was shot at close range, thus insuring his death. The victim was on his way to rejoin his family
after a hard days work. Instead, he was mercilessly shot to death, leaving his family in grief for his untimely
demise. The killing is a grim example of the utter inhumanity of man to his fellowmen.
The issues that now come to fore are (1) whether or not treachery is a generic aggravating circumstance
in robbery with homicide; and if in the affirmative, (b) whether treachery may be appreciated against Juan and
Victor. On the first issue, we rule in the affirmative. This Court has ruled over the years[54] that treachery is a
generic aggravating circumstance in the felony of robbery with homicide, a special complex crime (un delito
especial complejo) and at the same time a single and indivisible offense (uno solo indivisible).[55] However, this
Court in two cases has held that robbery with homicide is a crime against property and hence treachery which
is appreciated only to crimes against persons should not be appreciated as a generic aggravating
circumstance.[56] It held in another case that treachery is not appreciated in robbery with rape precisely
because robbery with rape is a crime against property.[57] These rulings of the Court find support in case law
that in robbery with homicide or robbery with rape, homicide or rape are merely incidents of the robbery, with
robbery being the main purpose and object of the criminal.[58] Indeed, in People vs. Cando,[59] two distinguished
members of this Court advocated a review of the doctrine that treachery is a generic aggravating circumstance
in robbery with homicide. They opined that treachery is applicable only to crimes against persons. After all,
in People vs. Bariquit,[60] this Court in a per curiam decision promulgated in year 2000 declared that treachery
is applicable only to crimes against persons. However, this Court held in People vs. Cando that treachery is a
generic aggravating circumstance in robbery with homicide, citing its prior rulings that in robbery with homicide,
treachery is a generic aggravating circumstance when the victim of homicide is killed with treachery. This Court
opted not to apply its ruling earlier that year in People vs. Bariquit.
Legal Luminaries in criminal law and eminent commentators of the Revised Penal Code are not in full
accord either. Chief Justice Ramon C. Aquino (Retired) says that treachery is appreciated only in crimes
against persons as defined in Title 10, Book Two of the Code.[61] Chief Justice Luis B. Reyes (Retired) also is
of the opinion that treachery is applicable only to crimes against persons.[62] However, Justice Florenz D.
Regalado (Retired) is of a different view.[63] He says that treachery cannot be considered in robbery but can be
appreciated insofar as the killing is concerned, citing the decisions of this Court in People vs. Balagtas[64] for
the purpose of determining the penalty to be meted on the felon when the victim of homicide is killed with
treachery.
It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in force in Spain, as
amended by the Codigo Penal Reformado de 1870 was applied in the Philippines. The Penal Code of 1887 in
the Philippines was amended by Act 3815, now known as the Revised Penal Code, which was enacted and
published in Spanish. In construing the Old Penal Code and the Revised Penal Code, this Court had accorded
respect and persuasive, if not conclusive effect to the decisions of the Supreme Court of Spain interpreting and
construing the 1850 Penal Code of Spain, as amended by Codigo Penal Reformado de 1870.[65]
Article 14, paragraph 16 of the Revised Penal Code reads:

ART. 14. Aggravating circumstances. The following are aggravating circumstances:

xxx
16. That the act be committed with treachery (alevosia). 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 specially to
insure its execution, without risk to himself arising from the defense which the offended party might make.

The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code and the Codigo Penal
Reformado de 1870 of Spain which reads:

Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete cualquiera de los delitos contra las
personas empleando medios, modos o for mas en la ejecucion que tiendan directa y especialmente a asegurarla sin riesgo
para su persona, que proceda de la defensa que pudiera hacer el ofendido. xxx

Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850 Penal Code of Spain
and the Codigo Penal Reformado de 1870 with a slight difference. In the latter law, the words las personas (the
persons) are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the words the person are
used.
Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in
Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of Spain
has consistently applied treachery to robbery with homicide, classified as a crime against property. Citing
decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the Spanish Penal Code says
that despite the strict and express reference of the penal code to treachery being applicable to persons,
treachery also applies to other crimes such as robbery with homicide:[66]

Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe estimarla en los que no perteneciendo a este
titulo se determinan por muerte o lesiones, como, en el robo con homicidio, y en el homicidio del Jefe del Estado que es
un delito contra la seguridad interior del Estado, y no obstante la referencia estricta del texto legal a los delitos contra las
personas no es la alevosia aplicable a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo cualifica
lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art. 409), ni en la ria tumultuaria (art. 408) ni
en el infanticidio (art. 410). xxx. [67]

Viada also says that treachery is appreciated in crimes against persons (delitos contra personas) and also
in robbery with homicide (robo con homicidio).[68]

Contra las personas. - Luego la circunstancia de alevosia solo puede apreciarse en los delitos provistos desde el art. 417 al
447, y en algun otro, como el de robo con homicidio, atentario, a la vez que contra la propriedad, contra la persona.

Thus, treachery is a generic aggravating circumstance to robbery with homicide although said crime is
classified as a crime against property and a single and indivisible crime. Treachery is not a qualifying
circumstance because as ruled by the Supreme Court of Spain in its decision dated September 11, 1878, the
word homicide is used in its broadest and most generic sense.[69]
Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or increasing the penalty
for a crime, aggravating circumstances shall be taken into account. However, aggravating circumstances which
in themselves constitute a crime specially punishable by law or which are included by the law in defining a
crime and prescribing a penalty therefor shall not be taken into account for the purpose of increasing the
penalty.[70] Under paragraph 2 of the law, the same rule shall apply with respect to any aggravating
circumstances inherent in the crime to such a degree that it must of necessity accompany the commission
thereof.

1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included
by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of
increasing the penalty.

xxx
2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it
must be of necessity accompany the commission thereof.

Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially
punishable by law nor is it included by the law in defining the crime of robbery with homicide and prescribing
the penalty therefor.Treachery is likewise not inherent in the crime of robbery with homicide. Hence, treachery
should be considered as a generic aggravating circumstance in robbery with homicide for the imposition of the
proper penalty for the crime.
In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a generic
aggravating circumstance not only in crimes against persons but also in robbery with homicide. The high court
of Spain applied Article 79 of the Spanish Penal Code (Article 62 of the Revised Penal Code) and ruled that
since treachery is not a constitutive element of the crime of robbery with homicide nor is it inherent in said
crime, without which it cannot be committed, treachery is an aggravating circumstance to said crime. The high
court of Spain was not impervious of the fact that robbery with homicide is classified as a crime against
property. Indeed, it specifically declared that the classification of robbery with homicide as a crime against
property is irrelevant and inconsequential in the application of treachery. It further declared that it would be
futile to argue that in crimes against property such as robbery with homicide, treachery would have no
application. This is so, the high tribunal ruled, because when robbery is coupled with crimes committed against
persons, the crime is not only an assault (ataca) on the property of the victims but also of the victims
themselves (ofende):

xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo de robo y homicidio, ni de tal modo
inherente que sin ella no pueda cometerse, sin que quepa arguir que en los delitos contra la propiedad no debe aquella
tener aplicacion,porque cuando estos son complejos de los que se cometen contra las personas, no solo se ataca a la
propiedad, sino que se ofende a estas. xxx[71]

In fine, in the application of treachery as a generic aggravating circumstance to robbery with

homicide, the law looks at the constituent crime of homicide which is a crime against persons and not
at the constituent crime of robbery which is a crime against property. Treachery is applied to the
constituent crime of homicide and not to the constituent crime of robbery of the special complex crime
of robbery with homicide.
The crime of robbery with homicide does not lose its classification as a crime against property or
as a special complex and single and indivisible crime simply because treachery is appreciated as a
generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably
with Article 63 of the Revised Penal Code absent any generic mitigating circumstance.
In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when the victim of robbery is
killed with treachery, the said circumstance should be appreciated as a generic aggravating circumstance in
robbery with homicide:

xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un conocido suyo, compaero de viaje,
para lo cual desviaron cautelosamente los carros que guiaban, en uno de los cuales iba el interfecto, dirigiendolos por otro
camino que conducia a un aljibon, y al llegar a este, valiendose de engao para hacer bajar a dicho interfecto, se lanzaron
de improviso sobre el, tirandolo en tierra, robandole el dinero, la manta y los talegos que llevaba, y atandole al pie una
piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no cabe duda que constituyen el delito
complejo del art. 516, num. I, con la circunstancia agravante de alevosia, puesto que los medios, forma y modos
empleados en la ejecucion del crimen tendieron directa y especialmente a asegurarla sin riesgo para sus autores,
procedente de la defensa del ofendido.[72]

In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of
homicide is killed by treachery.
On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the Revised Penal Code
which was taken from Article 80 of the Codigo Penal Reformado de 1870,[73] provides that circumstances which
consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate
or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act
or their cooperation therein. The circumstances attending the commission of a crime either relate to the
persons participating in the crime or into its manner of execution or to the means employed. The latter has a
direct bearing upon the criminal liability of all the accused who have knowledge thereof at the time of the
commission of the crime or of their cooperation thereon.[74] Accordingly, the Spanish Supreme Court held in
its Sentencia dated December 17, 1875 that where two or more persons perpetrate the crime of robbery with
homicide, the generic aggravating circumstance of treachery shall be appreciated against all of the felons who
had knowledge of the manner of the killing of victims of homicide, with the ratiocination that:

xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo ocasin del robo para la imposicion de la pena
del art. 516, num. I, no puede sere ni aun discutible que, concurriendo la agravante de alevosia, se aumente la
criminalidad de los delincuentes; siendo aplicable a todos los autores del hecho indivisible, porque no es circunstancia que
afecte a la personalidad del delincuente, de las que habla el art. 80 del Codigo penal en su primera parte, sino que consiste
en la ejecusion material del hecho y en los medios empleados para llevarle a cabo, cuando de ellos tuvieron conocimiento
todos los participantes en el mismo por el concierto previo y con las condiciones establecidad en la segunda parte del
citado articulo.[75]

Be that as it may, treachery cannot be appreciated against Juan and Victor in the case at bar because the
same was not alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules on Criminal
Procedures which reads:

Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

Although at the time the crime was committed, generic aggravating circumstance need not be alleged in
the Information, however, the general rule had been applied retroactively because if it is more favorable to the
accused.[76]Even if treachery is proven but it is not alleged in the information, treachery cannot aggravate the
penalty for the crime.
There being no modifying circumstances in the commission of the felony of robbery with homicide, Juan
and Victor should each be meted the penalty of reclusion perpetua conformably with Article 63 of the Revised
Penal Code.

Civil Liability of Juan and Victor

The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio, Jr. The court did not
specify whether the said amounts included civil indemnity for the death of the victim, moral damages and the
lost earnings of the victim as a police officer of the PNP. The Court shall thus modify the awards granted by the
trial court.
Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are entitled to
civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral damages in the amount
of P50,000.00, Rosemarie Manio having testified on the factual basis thereof.[77] Considering that treachery
aggravated the crime, the heirs are also entitled to exemplary damages in the amount of P25,000.00. This
Court held in People vs. Catubig[78] that the retroactive application of Section 8, Rule 110 of the Revised Rules
of Criminal Procedure should not impair the right of the heirs to exemplary damages which had already
accrued when the crime was committed prior to the effectivity of the said rule. Juan and Victor are also jointly
and severally liable to the said heirs in the total amount of P30,000.00 as actual damages, the prosecution
having adduced evidence receipts for said amounts. The heirs are not entitled to expenses allegedly incurred
by them during the wake as such expenses are not supported by receipts.[79] However, in lieu thereof, the heirs
are entitled to temperate damages in the amount of P20,000.00.[80]The service firearm of the victim was turned
over to the Evidence Custodian of the Caloocan City Police Station per order of the trial court on October 22,
1997.[81] The prosecution failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in
the amount of P6,000.00. Hence, the award should be deleted. However, in lieu of actual damages, the bus
company is entitled to temperate damages in the amount of P3,000.00.[82]
 The heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on record
shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on September 28, 1996 at the age of
38. He had a gross monthly salary as a member of the Philippine National Police of P8,065.00 or a gross
annual salary of P96,780.00. Hence, the heirs are entitled to the amount of P1,354,920.00 by way of lost
earnings of the victim computed, thus:

Age of the victim = 38 years old

Life expectancy = 2/3 x (80 age of the victim at the time of death)

= 2/3 x (80-38)

= 2/3 x 42

= 28 years

Gross Annual Income = gross monthly income x 12 months

= P8,065.00 x 12

= P96,780.00

Living Expenses = 50% of Gross Annual Income

= P96,780.00 x 0.5

= P48,390.00

Lost Earning Capacity = Life expectancy x [Gross Annual Income-

Living expenses]

= 28 x [P96,780.00 P48,390.00]

= 28 x P48,390.00

= P1,354,920.00

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Bulacan is hereby
AFFIRMED with MODIFICATIONS. Accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan are
hereby found guilty beyond reasonable doubt of the felony of robbery with homicide defined in Article 294,
paragraph 1 of the Revised Penal Code and, there being no modifying circumstances in the commission of the
felony, hereby metes on each of them the penalty of RECLUSION PERPETUA. Said accused-appellants are
hereby ordered to pay jointly and severally the heirs of the victim SPO1 Jose C. Manio, Jr. the amounts
of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P1,349,920.00 for lost earnings, P30,000.00
as actual damages and P25,000.00 as exemplary damages. The award of P6,000.00 to the Five Star Bus, Inc.
is deleted. However, the said corporation is awarded the amount of P3,000.00 as temperate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona,
Carpio-Morales, and Azcuna, JJ., concur.
Vitug J., please see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., join J. Vitugs separate opinion.
[1] Penned by Judge Basilio R. Gabo, Jr.
[2] Exhibit A.
[3] Exhibit H.
[4]
Exhibit E.
[5]
Exhibits A and G.
[6]
Exhibits C to C-4.
[7]
Exhibit B-1.
[8]
Exhibit H.
[9] Exhibit I.
[10] Exhibit F.
[11] Original Records of Crim. Case No. 443-M-97, p. 2.
[12] Ibid., p. 161.
[13] Id., p. 163.
[14] Id., p. 179.
[15]
Id., p. 175.
[16]
Rollo, p. 70.
[17]
Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 62 SCRA 258 (1975).
[18]
Fulgado, et al. vs. Court of Appeals, et al., 182 SCRA 81 (1990).
[19] People vs. Suplito, 314 SCRA 493 (1999).
[20] See note 16, supra.
[21] People vs. Digno, Jr. 250 SCRA 237 (1995).
[22] See note 17, supra.
[23] Original Records, p. 70.
[24] Ibid., p. 86.
[25]
Id., p. 89.
[26]
Id., p. 92.
[27]
See note 18, supra.
[28]
Original Records , p. 96.
[29] Ibid., p.107.
[30] Id., p. 113.
[31] Id., p. 157.
[32] Id., p. 172.
[33] 31 CORPUS JURIS SECUNDUM, 87, p. 494.
[34] Original Records, pp. 192-193.
[35]
People vs. Ofido, 342 SCRA 155 (2000).
[36]
TSN, Cacatian, November 18, 1997, pp. 6-7.
[37]
TSN, Digap, March 31, 1998, p. 22.
[38]
Ditche vs. Court of Appeals, et al., 327 SCRA 301 (2000).
[39] TSN, Cacatian, November 18, 1997, pp. 19-29.
[40] Exhibit A.
[41] Ibid., pp. 8-9.
[42] TSN, March 31, 1998, pp. 19-20.
[43] Exhibit H.
[44] 310 SCRA 819 (1999).
[45] People v. Lubong, 332 SCRA 672 (2000).
[46]
People vs. Nang, 289 SCRA 16 (1998).
[47]
People vs. Ponciano, 204 SCRA 627 (1991).
[48]
89 SCRA 14 (1979).
[49]
99 PHIL. 992 (1956).
[50] People vs. Cando, 344 SCRA 330 (2000).
[51] Original Records, pp. 194-195.
[52] People vs. Reyes, 287 SCRA 229 (1998).
[53] People vs. Bustos, 171 SCRA 243 (1989).
[54] e.g. People vs. Semaada, 103 Phil 790 (1958); People vs. Bautista, et al., 107 Phil 1091 (1960); People vs.
Tiongson, et al., 6 SCRA 431 (1962); People vs. Pedro, et al., 16 SCRA 57 (1966); People vs.
Sigayan, et al, 16 SCRA 839 (1966); People vs. Pujinio, et al., 27 SCRA 1185 (1969); People vs.
Saquing, et al., 30 SCRA 834 (1969); People vs. Cornelio, et al., 39 SCRA 435 (1971); People vs.
Repato, 91 SCRA 488 (1979); People vs. Pajanustan, 97 SCRA 699 (1980); People vs. Arcamo, et al.,
105 SCRA 707 (1981); People vs. Tintero, 111 SCRA 714 (1982); People vs. Gapasin, et al., 145
SCRA 178 (1986); People vs. Badilla, 185 SCRA 554 (1990); People vs. Manansala, 211 SCRA 66
(1992); People vs. Bechayda, 212 SCRA 336 (1992); People vs. Vivas, 232 SCRA 238 (1994);
People vs. Pacapac, et al., 248 SCRA 77 (1995); People vs. Mores, et al., 311 SCRA 342
(1999); People vs. Reyes, et al., 309 SCRA 622 (1999); and People vs. Abdul, et al., 310 SCRA 246
(1999).
[55] Sentencia de 17 de Diciembre de 1875 of the Supreme Court of Spain. In several cases, this Court held
that robbery with homicide is a special complex crime, e.g., People vs. Jarandilla, 339 SCRA
381(2000); People vs. Quibido, 338 SCRA 607 (2000); People vs. Aquino, 329 SCRA 247
(2000); People vs. Zuela, et al., 323 SCRA 589 (2000); People vs. Tao, 331 SCRA 449 (2000). In some
cases, this Court has held that robbery with homicide is a single and indivisible crime, e.g., People vs.
Labita, 99 Phil. 1068 (unreported [1956]); People vsAlfeche, Jr., 211 SCRA 770 (1992).
[56]
People vs. Timple, 237 SCRA 52 (1994); People vs. San Pedro, 95 SCRA 306 (1980).
[57]
People vs. Loseo, G.R. No. 5508-09, April 29, 1954 (unpublished). Under Republic Act 8383, rape is a
crime against persons.
[58]
People vs. Navales, 266 SCRA 569 (1997).
[59]
344 SCRA 330 (2000).
[60]
341 SCRA 600 (2000).
[61]
AQUINO, THE REVISED PENAL CODE, 1987 ed., Vol. I, p. 386.
[62]
REYES, THE REVISED PENAL CODE, 1993 ed., Vol. I, p. 412.
[63]
REGALADO, CRIMINAL LAW CONSPECTUS, 1st ed., p. 95.
[64]
68 Phil. 675 (1939)..
[65]
People vs. Mangulaban, 99 Phil. 992 (1956); People vs. Mesias, 65 Phil. 267 (1939); Marasigan vs. Robles,
55 O.G. 8297; United States vs. Samonte, L-3422, August 3, 1907; United States vs. Ipil, et al., 27 Phil
530 (1914), concurring opinion: United States vs. Landasan, 35 Phil 359 (1916).
[66]
CUELLO CALON DERECHO PENAL, 1960 ed., Vol. I, p. 592.
[67]
Decisions dated January 19, 1905, April 18, 1908, June 28, 1922 and December 18, 1947.
[68]
SALVADOR VIADA CODIGO PENAL REFORMADO DE 1870, Concordado y Comentado 5th ed. 1926,
Tomo II, p. 252. Articles 417 to 447 refer to crimes against persons under the Codigo Penal Reformado
de 1870. In Article 516, Title XIII, Chapter 1 of the Codigo Penal Reformado de 1870, robbery with
homicide is a crime against property.
[69] Cited in United States vs. Landasan, 35 Phil 359 (1916).
[70] Article 62, paragraphs 1 and 2 were taken from Article 79 of the Penal Code of Spain, viz:
No producen el efecto de aumentar la pena las circunstancias agravantes que por si mismas constituyeren un
delito especialmente penado por la Ley, o que esta haya expresado al describirlo y penarlo.
Tampoco lo producen aquellas circunstancias agravantes de tal manera inherentes al delito, que sin la
concurrencia de ellas no pudiera cometerse. xxx.
[71] Vide, Note 63, p. 254.
[72] Ibid., p. 255.
[73] Las circunstancias agravantes o atenuantes que consistieren en la disposicion moral del delincuente, en
sus relaciones particulares con el ofendido, o en otra causa personal, serviran para agravar o atenuar
la responsabilidad solo de aquello autores, complices o encubridores en quienes concurrieren.
Las que consistieren en la ejecucion material del hecho o en los medios empleados para realizarlo serviran
para agravar o atenuar la responsabilidad unicamente de los que tuvieren conocimiento de ellas en el
momento de la accion o de su cooperacion para el delito. xxx
[74]
United States vs. Ancheta, 15 Phil 43 (1910).
[75] Ibid.
[76] People vs. Onabia, 306 SCRA 23 (1999).
[77] People vs. Tao, 331 SCRA 449 (2000).
[78] 363 SCRA 621 (2000).
[79] People vs. Cordero, 263 SCRA 122 (1996).
[80] Article 2234, New Civil Code.
[81]
Original Record, p. 82.
[82]
See note 79.
 

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 119987-88 October 12, 1995

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital
Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.

KAPUNAN, J.:

The sole issue in the case at bench involves a question of law. After finding that an accused individual in a
criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in
imposingeither the penalty of Reclusion Perpetua or Death?

The facts antecedent to the case before this Court, as narrated by petitioner, 1 involve the perpetration of acts
so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men:

On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a
sack and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it
was seen floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila.

When untied and removed from its cover, the lifeless body of the victim was seen clad only in a
light colored duster without her panties, with gaping wounds on the left side of the face, the left
chin, left ear, lacerations on her genitalia, and with her head bashed in.

On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the
victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H.
Parola Compound, Tondo, Manila were later charged with the crime of Rape with Homicide in an Information
dated August 8, 1994 filed with the Regional Trial Court of Manila, National Capital Judicial Region. Said
Information, docketed as Criminal Case No. 94-138071, reads:

That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring
and confederating together with one alias "LANDO" and other persons whose true names,
identifies and present whereabouts are still unknown and helping one another, with treachery,
taking advantage of their superior strength and nocturnity, and ignominy, and with the use of
force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering
her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her
neck did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person
of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will
and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a. "LANDO" and others,
caused her fatal injuries which were the direct cause of her death immediately thereafter.

CONTRARY TO LAW.
 Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St.,
Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo,
Manila, Richard Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila,
and Catalino Yaon y Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of
the same crime of Rape with Homicide in an Information dated August 11, 1994, docketed as
Criminal Case No. 94-138138, allegedly committed as follows:

That on or about the 2nd day of August, 1994, in the City of Manila, Philippines,
the said accused conspiring and confederating with ABUNDIO
LAGUNDAY Alias "JR," JEOFREY and HENRY LAGARTO y PETILLA who have
already been charged in the Regional Trial Court of Manila of the same offense
under Criminal Case No. 94-138071, and helping one another, with treachery,
taking advantage of their superior strength and nocturnity and ignominy, and with
the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into
a pedicab, and once helpless, forcibly bringing her to a nearby warehouse,
covering her mouth, slashing her vagina, hitting her head with a thick piece of
wood and stabbing her neck, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y
LAGMAN, a minor, seven (7) years of age, against the latter's will and consent
and on said occasion the said accused together with their confederates
ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct
cause of her death immediately thereafter.

CONTRARY TO LAW.

The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila,
presided over by respondent Judge.

Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly
shot by police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on
August 12, 1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information.

After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a
decision2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela
guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the
"penalty of reclusion perpetuawith all the accessories provided for by law." 3 Disagreeing with the sentence
imposed, the City Prosecutor of Manila on February 8, 1995, filed a Motion for Reconsideration, praying that
the Decision be "modified in that the penalty of death be imposed" against respondents Lagarto and Cordero,
in place of the original penalty (reclusion perpetua). Refusing to act on the merits of the said Motion for
Reconsideration, respondent Judge, on February 10, 1995, issued an Order denying the same for lack of
jurisdiction. The pertinent portion reads:

The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have
complied with the legal requirements for the perfection of an appeal. Consequently, for lack of
jurisdiction, this Court cannot take cognizance of the Motion for Reconsideration of the Public
Prosecutor of Manila.

WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by
both herein accused is hereby reiterated.

The Clerk of this Court is hereby directed to transmit the complete records of these cases,
together with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8,
Rule 122 of the Revised Rules of Criminal Procedure.

SO ORDERED.
Hence, the instant petition.

The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's determination of
guilt and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus
clinically limited our narration of events to those cold facts antecedent to the instant case relevant to the
determination of the legal question at hand, i.e., whether or not the respondent judge acted with grave abuse of
discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death
under Republic Act No. 7659, after finding the accused guilty of the crime of Rape with Homicide.

We find for petitioner.

Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious
or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law
to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority. Under this system,
judges are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," 4 resist
encroachments by governments, political parties, 5 or even the interference of their own personal beliefs.

In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at
trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in
force at the time of the commission of the crime for which respondent judge found the accused guilty was
Republic Act No. 7659, he was bound by its provisions.

Section 11 of R.A. No. 7659 provides:

Sec. 11. Article 335 of the same Code is hereby amended to read as follows:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:

1. By using force or intimidation.

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

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

When the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death. . . . 6

Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion
Perpetua, it allows judges the discretion — depending on the existence of circumstances modifying the offense
committed — to impose the penalty of either Reclusion Perpetua only in the three instances mentioned therein.
Rape with homicide is not one of these three instances. The law plainly and unequivocably provides that
"[w]hen by reason or on the occasion of rape, a homicide is committed, the penalty shall be death." The
provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty under
the circumstances described, other than a sentence of death.

We are aware of the trial judge's misgivings in imposing the death sentence because of his religious
convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court
of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself
provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by
those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no
choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held
that:

[W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in
arriving at a conclusion and determination of a case or the penalty imposed, resulting in an
illegality and reversible error, then we are constrained to state our opinion, not only to correct
the error but for the guidance of the courts. We have no quarrel with the trial judge or with
anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today 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. It is a well settled rule
that the courts are not concerned with the wisdom, efficacy or morality of laws. That question
falls exclusively within the province of the Legislature which enacts them and the Chief
Executive who approves or vetoes them. The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the
members of the judiciary we feel it incumbent upon us to state that while they as citizens or as
judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the
authority or department concerned, its amendment, modification, or repeal, still, as long as said
law is in force, they must apply it and give it effect as decreed by the law-making body. 8

Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper
penalty and civil liability provided for by the law on the accused." 9 This is not a case of a magistrate ignorant of
the law. This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose
a penalty to which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or
with grave abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion
Perpetua where the law clearly imposes the penalty of Death.

WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED
to the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance
with respondent judge's finding that the private respondents in the instant case had committed the crime of
Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act
No. 7659, subject to automatic review by this Court of the decision imposing the death penalty.

SO ORDERED.

Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

NARVASA, C.J., concurring:

I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this
separate opinion merely to address a question which may be raised in relation to the appeal taken by the
accused from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent
Judge declined to act on the merits of motion for reconsideration filed by the prosecution — praying that his
decision sentencing both accused to suffer reclusion perpetua be "modified in that the penalty of death be
imposed" — for the reason that since the accused had already "complied with the legal requirements for the
perfection of an appeal," the Trial Court had lost jurisdiction over the cases. It was precisely that refusal that
prompted the institution in this Court of the special civil action of certiorari at bar.

It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court
rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This proposition
considered, and following respondent Judge's reasoning, this Court's directive for the remand of the case "to
the Regional Trial Court for the imposition of the penalty of death upon private respondents," might appear to
be open to question, since it would require the Trial Court to act in cases over which it had lost jurisdiction.
Such a conclusion is not warranted.

The judgment in question is void, and has been annulled and set aside by this Court, because rendered
"without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so
far as it imposes, in light of the facts found to have been proven beyond reasonable doubt, a penalty other than
that peremptorily prescribed by law. The judgment being void, the appeal attempted to be taken therefrom is
inefficacious. The Trial Court may not be deemed to have thereby lost jurisdiction of the cases. It cannot thus
be said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There
exists no legal obstacle to the remand of the cases to it and its modification of the judgment so that it may
comply with the mandatory prescription of the law.

REGALADO, J., concurring:

I concur without reservation in the ponencia in this case and its directive that the court a quo impose the
correct penalty of death as provided by law and consequent to its findings of guilt on the part of private
respondents. Indeed, this separate opinion which explicates my conformity with the procedure adopted and the
mandate thereof would not have been necessary were it not for the contrary observations that the petition
herein should either have been dismissed or consolidated with the criminal case elevated on appeal by private
respondents.

Such digression from the judgment unconditionally accepted by the other members of the Court does not
impress me as being concordant with the Rules of Court and decisional law. What is before us in the case at
bar is an original civil action invoking the extraordinary writ of certiorari for the imposition of the correct
penalty specified by law, which legal duty respondent judge refused to comply with in grave abuse of his
judicial discretion. 1 On the other hand, the criminal case with which it is sought to be consolidated is an
appellate recourse wherein the relief sought is primarily the reversal of the finding of guilt and the absolution of
private respondents.

Evidently, the determinative issues involved and the limited relief sought in the present special civil action are
entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal
case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject
matter and the existence of a common question of law or fact. This is essentially the same as the rule on
consolidation in criminal procedure 3 which contemplates charges for offenses founded on the same facts, or
forming part of a series of offenses of similar character.

Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and
not a special civil action in combination with the former. The impropriety of the latter situation is specially
underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the
appealed criminal case. These considerations apply to both the trial courts in the exercise of original
jurisdiction and to the appellate courts in the implementation of revisory power.

The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge
— erroneous because he imposed the wrong penalty — corrected on that score in the first instance. After such
correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by
this Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the
resultant amended judgment containing the proper penalty shall be the basis for the review as to whether
appellants are truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed
simultaneously and in unification with the appellate proceeding strikes me as an aberrant procedure. While it
does not exactly square with the figurative posture of putting the cart before the horse, it does result in the
same absurdity of both the horse and the cart moving abreast at the same time along the same judicial path.

It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be
conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing
its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the
judgment a quo open for review and the Court may raise the penalty to the appropriate punitive level. But, as
the People pertinently observes, what is there to prevent appellants from withdrawing their appeal upon
sensing from the arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate
denouement would be the death sentence?

Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in
the appellate court. 4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court
is permitted. 5Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the
penalty imposed may be corrected in the judgment of the case on the merits, 6 why should the appellate course
of the proceedings still have to be subject to such contingencies — with the inevitable waste of time and effort
in the formulation of alternative theories in two sets of pleadings by both parties — when with the decisive
sweep of the adjudgment here the doubts are dissipated and the real areas of contention are laid bare?

Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a
judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is
now rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will
consequently be before this Court on automatic review. That provision calling for automatic review when
capital punishment is inflicted 7 serves equally the interests of both the defense and the prosecution through
protective features established by case law.

Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of death and
he thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without
the benefit of briefs or arguments from the accused. 8 The automatic review of the case shall proceed even if
the death convict shall escape, 9 as an exception to the provisions of Section 8, Rule 124, and such automatic
review cannot be waived. 10 The aforementioned beneficial effects are not provided for and may not be availed
of by the accused in an ordinary appeal to this Court.

The automatic review of the death sentence ensures the right of the condemned person to procedural due
process on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction
decreed by law. The disposition adopted by the Court in this case subserves the ends of these fundamental
policies, hence my unqualified assent thereto.

VITUG, J., dissenting:

The ponencia itself indicates that the case against the convicted accused is already on appeal before this
Court. Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open
for review and consideration. A ruling on the petition would be precipitate and might be so perceived as
peremptory on the imposition of the death penalty.

With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at
the very least be consolidated with the appealed case.

Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.

Davide, Jr., J. concurs.

Footnotes

1 Rollo, p. 4, Except as to the penalty imposed, petitioner and respondent court are in agreement as to the essential facts
of the case.

2 Rollo, pp. 24-51.

3 Rollo, p. 28, The dispositive portion reads:

WHEREFORE, premises considered judgment is hereby rendered, dismissing the information as against
ROLANDO MANLANGIT for lack of evidence, and finding both accused HENRY LAGARTO y PETILLA and
ERNESTO CORDERO y MARISTELA "guilty beyond reasonable doubt of the crime of RAPE WITH HOMICIDE
charged in the Information of these cases, and sentencing both accused the penalty of reclusion perpetua with all
the accessories provided for by law."

Said accused are further ordered to indemnify, jointly and severally, the private complainant the sum of P100,000
for the death of the victim, ANGEL ALQUIZA; the sum of P500,000 for moral damages, and the amount of
P52,000.00 for actual damages representing expenses incurred for the wake and funeral of the victim. They are
further ordered to pay the costs of these suits.

SO ORDERED. (ANNEX 'A', Petition)

4 Act of Athens (1955).

5 Id.

6 Emphasis supplied.

7 88 Phil. 36 [1951].

8 Id. at 43-44.

9 Rule 120, sec. 1.

REGALADO, concurring:

1 People vs. Olaes, 105 Phil. 502 (1959); People vs. Limaco, 88 Phil. 35 (1951); People vs. Carillo, et al., 85 Phil. 611
(1950).

2 Section 1, Rule 31.

3 Section 14, Rule 119.

4 U.S. vs. Sotto, 38 Phil. 666 (1918).

5 People vs. Mendoza, 93 Phil. 581 (1953).

6 See People vs. Roque, G.R. No. 53470, June 26, 1981, 105 SCRA 117.

7 Sec. 10, Rule 122.

8 People vs. Villanueva, 93 Phil. 927 (1953).

9 People vs. Vallente, L-37937, September 30, 1986, 144 SCRA 495; People vs. Cornelio, et al., L-1289, June 10, 1971,
39 SCRA 435.

10 People vs. Daban, L-31429, January 31, 1972, 43 SCRA 185.

 THIRD DIVISION

[G.R. No. 116719. January 18, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PATRICIO AMIGO alias BEBOT, accused-
appellant.

DECISION
MELO, J.:
Initially, Patricio Amigo was charged with frustrated murder in an Information reading as follows:

The undersigned accuses the above-named accused of the crime of FRUSTRATED MURDER, under Art. 248, in relation
to Art. 5 of the Revised Penal Code, committed as follows:

That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, armed with a knife, with treachery and evident premeditation and with intent to kill
wilfully, unlawfully and feloniously attacked, assaulted and stab with said weapon one Benito Ng Suy, thereby inflicting
injuries upon the latter, the following injuries, to wit:

MULTIPLE STAB WOUNDS-LEFT ARM, LEFT CHEST, ABDOMEN AND LEFT THIGH WITH PENETRATION
TO LEFT PLEURAL CAVITY, DIAPHRAGM STOMACH, DUODENUM, PANCREAS AND
MIDTRANVERSE COLON.

thus performing all the acts of execution which should have produced the crime of murder as a consequence
but nevertheless, did not produce it by reason of causes independent of his will, that is, because of the timely
and able medical assistance immediately rendered to the said Benito Ng Suy.
(p.1, Rollo.)
to which he pleaded not guilty.
Subsequently, due to the death of the victim, an amended Information was filed charging now the crime of
murder, to wit:

That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, armed with a knife, with treachery and evident premeditation and with intent to kill
wilfully, unlawfully and feloniously attacked, assaulted and stabbed with said weapon one Benito Ng Say, thereby
inflicting upon the latter multiple wounds which caused his death and the consequent loss and damage to the heirs of the
victim.

(p. 3, Rollo.)

After trial on the merits, the court a quo rendered a decision, disposing:

WHEREFORE, finding the accused Patricio Amigo guilty beyond reasonable doubt of the crime of MURDER punishable
under Art. 248 of the Revised Penal Code, with no modifying circumstance present, the accused is hereby sentenced to the
penalty ofreclusion perpetua, which is the medium period of the penalty of reclusion temporal in its maximum to death
and to pay the cost; to indemnify the offended party the amount of P93,214.70 as actual damages and P50,000.00 as
compensatory damages and P50,000.00 as moral damages.

(p. 32, Rollo.)

 Reversal thereof is now sought, with accused-appellant arguing that error was committed by the trial court
in imposing or meting out the penalty of reclusion perpetua against him despite the fact that Sec. 19 (1), Article
III of the 1987 Constitution was already in effect when the offense was committed.
The facts of the case, as briefly summarized in the brief submitted by the Office of the Solicitor General
and as borne out by the evidence, are as follows:

On December 29, 1989, at around 1:00 P.M., after having spent half-day at their store, located at No. 166-A, Ramon
Magsaysay Avenue, Davao City, Benito Ng Suy was driving their gray Ford Fiera back home, situated at the back of Car
Asia, Bajada, Davao City. With him during that time were his daughters, Jocelyn Ng Suy and a younger one together with
his two year old son, who were all seated at the front seat beside him while a five year old boy was also seated at the back
of the said vehicle. (TSN, April 29, 1991, pp. 3-5; TSN, March 31, 1992)

On their way home and while traversing the National Highway of Bajada, Davao City, an orange Toyota
Tamaraw driven by one Virgilio Abogada, suddenly made a left turn in front of the Regional Hospital, Bajada,
Davao City, without noticing the Ford Fiera coming from the opposite direction. This Tamaraw was heading for
Sterlyn Kitchenette, which was situated at the corner of the said hospital. (TSN, April 29, 1991, p. 4; TSN,
March 31, 1992, pp. 3 and 13)
With Virgilio was Patricio Amigo alias Bebot, a vulcanizer at Linglings vulcanizing shop owned and
operated by a certain Galadua. He was also seated at the right front seat beside Virgilio.
Due to the unexpected veer made by Virgilio, an accidental head on collision occurred between the Fiera
and the Tamaraw, causing a slight damage to the right bumper of the latter. (TSN, March 31, 1992, p. 4)
Right after the collision, Benito immediately alighted from the drivers seat and confronted Virgilio Abogada
who also went down from his vehicle. (TSN, April 29, 1991, p. 5)
Benito, who was a big man with a loud voice told Virgilio, You were not looking, to which Virgilio retorted, I
did not see you. (TSN, April 29, 1991, p.16)
While the two drivers where having this verbal confrontation, Patricio who was merely a passenger of
Virgilio also alighted from the front seat of the Tamaraw and instantaneously approached Benito and advised
the latter to leave since it was merely a small and minor accident. (TSN, April 29, 1991, pp. 16-18)
A bit irritated with the actuation exhibit by Patricio, Benito rebuked the former and told him not to interfere,
since he had nothing to do with the accident. (Ibid., p. 7)
Irked by the comment made by Benito, Patricio sarcastically asked; You are Chinese, is it you? With a
ready answer Benito said; Yes, I am a Chinese and why? Patricio in turn replied; So, you are a Chinese, wait
for a while, then left. (Ibid., pp. 7 and 19)
Immediately thereafter, Benito ordered Jocelyn to call a policeman, but after a lapse of about one minute,
Patricio returned and arrogantly approached Benito, asking the latter once again, You are a Chinese, is it not?
To this Benito calmly responded in the affirmative.
(Ibid., pp. 7, 19-20)
Upon hearing the response, Patricio mumbled Ah, so you are a Chinese, and suddenly took a five inch
knife from his waist and simultaneously stabbed Benito hitting him twice on the chest. (ibid., p. 20)
After being hit, Benito wounded and sensing that his life was in peril, tried to evade his assailant by
pushing Patricio away and run around the Tamaraw but Patricio wielding the same knife and not content with
the injuries he had already inflicted, still chased Benito and upon overtaking the latter embraced him and
thrusted his knife on the victim several times, the last of which hit Benito on the left side of his body. (Ibid., pp.
8, 10, 22)
It was at this juncture that Jocelyn who was still inside the Ford Fiera, pleading for mercy to spare her
father tried to get out of the vehicle but it was very unfortunate that she could not open its door. (Ibid., p. 10)
Knowing that Patricio was really determined to kill her father by refusing to heed her pleas, Joselyn
shouted for help, since there were already several people around witnessing that fatal incident, but to her
consternation nobody lifted a single finger to help them. (Ibid., pp. 6, 10, 18, 21-22) Only after her father lay
seated on the floor of their Ford Fiera after being hit on the left side of his body that she was able to open the
door of the said vehicle. (Ibid., p. 12)
After this precise moment, her younger sister, upon seeing their father bathing with his own blood,
embraced him, causing Patricio to cease from his ferocious assault and noticing the presence of several
people, he fled. (Ibid., p. 22)
Thereafter, an enraged Jocelyn chased him, but since the assailant ran faster than her, she was not able
to overtake him, thus, she instead decided to go back to where her father was and carried him inside the
Tamaraw who bumped them and consequently brought him to San Pedro Hospital where he was attended to
at the Emergency Room. (Ibid., p. 13)
While at the Emergency Room, Benito who was on a very critical condition, due to multiple (13) stabbed
wounds, was operated by Dr. Rolando Chiu. After the operation, he was subsequently brought to the ICU and
stayed there for three (3) weeks. (July 12, 1991, pp. 3 and 4)
In a last ditch effort to save his life, having only 10 to 20 percent survival, Benito was airlifted to Manila and
was directly confined at the Chinese General Hospital. After three (3) weeks of confinement, Benito expired.
CAUSE OF DEATH - SEPSIS (an overwhelming infection). This means that the infection has already
circulated in the blood all over the body. (Ibid., pp.6-7)
(pp. 59-65, Rollo.)
Accused-appellant contends that under the 1987 Constitution and prior to the promulgation of Republic
Act No. 7659, the death penalty had been abolished and hence, the penalty that should have been imposed for
the crime of murder committed by accused-appellant without the attendance of any modifying circumstances,
should be reclusion temporal in its medium period or 17 years, 4 months and 1 day, to 20 years of reclusion
temporal.
Reasons out accused-appellant:
. . . Since the death penalty (or capital punishment) is not imposable when the stabbing and killing
happened, the computation of the penalty should be regarded from reclusion perpetua down and not from
death penalty. Indeed, the appropriate penalty is deducible from reclusion perpetua down to reclusion
temporal in its medium period. Hence, there being no modifying circumstances present (p. 5
Decision, ibid.), the correct penalty should be in the medium period (Art. 64, par. 1, Revised Penal Code) which
is 17 years, 4 months and 1 day to 20 years of reclusion temporal.
(p. 10, Appellants Brief, ff. p. 50, Rollo.)
The question raised by accused-appellant was settled by this Court in People vs. Muoz (170 SCRA 107
[1989]) thusly:
In People vs. Gavarra, Justice Pedro L. Yap declared for the Court that in view of the abolition of the death
penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for murder
is reclusion temporal in its maximum period to reclusion perpetua, thereby eliminating death as the original
maximum period. Later, without categorically saying so, the Court, through Justice Ameurfina A. Melencio-
Herrera in People vs.Masangkay and through Justice Andres R. Narvasa in People vs. Atencio, divided the
modified penalty into three new periods, the limits of which were specified by Justice Edgardo L. Paras in
People vs. Intino, as follows: the lower half of reclusion temporal maximum as the minimum; the upper half
of reclusion temporal maximum as the medium; and reclusion perpetua as the maximum.
The Court has reconsidered the above cases and, after extended discussion, come to the conclusion that
the doctrine announced therein does not reflect the intention of the framers as embodied in Article III, Section
19(1) of the Constitution. This conclusion is not unanimous, to be sure. Indeed, there is much to be said of the
opposite view, which was in fact shared by many of those now voting for its reversal. The majority of the Court,
however, is of the belief that the original interpretation should be restored as the more acceptable reading of
the constitutional provision in question.
The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and
thereby limited the penalty for murder to the remaining periods, to wit, the minimum and the medium. These
should now be divided into three new periods in keeping with the three-grade scheme intended by the
legislature. Those who disagree feel that Article III, Section 19(1) merely prohibits the imposition of the death
penalty and has not, by reducing it to reclusion perpetua, also correspondingly reduced the remaining penalties.
These should be maintained intact.
A reading of Section 19(1) of Article III will readily show that 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. And it is a settled rule of legal hermeneutics that if the language under consideration is plain, it is
neither necessary nor permissible to resort to extrinsic aids, like the records of the constitutional convention,
for its interpretation.
xxx xxx xxx
The question as we see it is not whether the framers intended to abolish the death penalty or merely to
prevent its imposition. Whatever the intention was, what we should determine is whether or not they also
meant to require a corresponding modification in the other periods as a result of the prohibition against the
death penalty.
It is definite that such a requirement, if there really was one, is not at all expressed in Article III, Section
19(1) of the Constitution or indicated therein by at least clear and unmistakable implication. It would have been
so easy, assuming such intention, to state it categorically and plainly, leaving no doubts as to its meaning. One
searches in vain for such a statement, express or even implied. The writer of this opinion makes the personal
observation that this might be still another instance where the framers meant one thing and said another or -
strangely, considering their loquacity elsewhere - did not say enough.
The original ruling as applied in the Gavarra, Masangkay, Atencio and Intino cases represented the
unanimous thinking of the Court as it was then constituted. All but two members at that time still sit on the
Court today. If we have seen fit to take a second look at the doctrine on which we were all agreed before, it is
not because of a change in the composition of this body. It is virtually the same Court that is changing its mind
after reflecting on the question again in the light of new perspectives. And well it might, and tan, for the tenets it
lays down are not immutable. The decisions of this Court are not petrified rules grown rigid once pronounced
but vital, growing things subject to change as all life is. While we are told that the trodden path is best, this
should not prevent us from opening a fresh trial or exploring the other side or testing a new idea in a spirit of
continuing inquiry.
Accordingly, with the hope that as judges, (we) will be equal to (our) tasks, whatever that means, we
hereby reverse the current doctrine providing for three new periods for the penalty for murder as reduced by
the Constitution. Instead, we return to our original interpretation and hold that Article III, Section 19(1) does not
change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except only insofar as it
prohibits the imposition of the death penalty and reduces it to reclusion perpetua. The range of the medium
and minimum penalties remains unchanged.
The Court realizes that this interpretation may lead to certain inequities that would not have arisen under
Article 248 of the Revised Penal Code before its modification. Thus, a person originally subject to the death
penalty and another who committed the murder without the attendance of any modifying circumstance will now
be both punishable with the same medium period although the former is concededly more guilty than the latter.
True enough. But that is the will not of this Court but of the Constitution. That is a question of wisdom, not
construction. Of some relevance perhaps is the parable in the Bible of the workman who was paid the
stipulated daily wage of one penny although he had worked longer than others hired later in the day also paid
the same amount. When he complained because he felt unjustly treated by the householder, the latter replied:
Friend, I do you no wrong. Did you not agree with me for a penny?
The problem in any event is addressed not to this Court but to the Congress. Penalties are prescribed by
statute and are essentially and exclusively legislative. As judges, we can only interpret and apply them and
have no authority to modify them or revise their range as determined exclusively by the legislature. We should
not encroach on this prerogative of the lawmaking body.
 Coming back to the case at bar, we find that there being no generic aggravating or mitigating
circumstance attending the commission of the offenses, the applicable sentence is the medium period of the
penalty prescribed by Article 248 of the Revised Penal Code which, conformably to the new doctrine here
adopted and announced, is still reclusion perpetua. This is the penalty we imposed on all the accused-
appellants for each of the three murders they have committed in conspiracy with the others. The award of civil
indemnity for the heirs of each of the victims is affirmed but the amount thereof is hereby increased to
P30,000.00 in line with the present policy.
(at pp. 120-125.)
The above ruling was reiterated in People vs. Parojinog (203 SCRA 673 [1991]) and in People vs. De la
Cruz (216 SCRA 476 [1992]).
Finally, accused-appellant claims that the penalty of reclusion perpetua is too cruel and harsh a penalty
and pleads for sympathy. Courts are not the forum to plead for sympathy. The duty of courts is to apply the law,
disregarding their feeling of sympathy or pity for an accused. DURA LEX SED LEX. The remedy is elsewhere -
clemency from the executive or an amendment of the law by the legislative, but surely, at this point, this Court
can but apply the law.
WHEREFORE, the appealed decision is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J. (Chairman), Davide, Jr., Francisco, and Panganiban, JJ., concur.
 

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9991 December 19, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
ROMAN MAGHIRANG, DAMASO RIVERA and FRANCISCO GUTIERREZ, defendants-appellants.

Roman Gesmundo for appellants Maghirang and Rivera.

Santos, Manglapus & Pinzon for appellant Gutierrez.
Office of the Solicitor General Corpus for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Laugna convicting the accused of the crime
of frustrated murder and sentencing each one of them to eight years and one day of prision mayor, with the
accessories provided by law, to pay, jointly and severally, to the offended party the sum of P400, and to pay
the costs of the trial.

It appears from the evidence that late at night on the 1st day of May, 1913, the accused Roman Maghirang,
Damaso Rivera, and Francisco Gutierrez, in company with Pablo Sahagun, went to the house of Cornelio
Briones in the barrio of Remedios, municipality of San Pablo, Laguna, carrying banjos and guitars, for the
purpose of giving a serenade in front of Briones' house in honor of his sister-in-law, to whom Sahagun was
paying some attention. The young lady being ill, Briones, from his window, called to the accused and asked
them not to continue the serenade as he was afraid the music would awaken her. The accused thereupon
departed. About 2 o'clock of the afternoon of the following day Briones, riding a carabao, went to visit a piece
of land belonging to him in Maabu. During the journey he had to cross a dry run which, in the wet season,
emptied its waters into the Patay-na-tubig River. Briones had crossed this run and was in the act of ascending
the opposite bank when suddenly the three accused, Roman Maghirang, Francisco Gutierrez, and Damaso
Rivera, leaped from the bushes in which they were hidden. Gutierrez seized the carabao while Rivera struck
Briones on the left arm with a club. The force of the blow knocked Briones to the ground. While down,
Maghirang approached him with a bolo and, in spite of the remonstrances and prayers of Briones, struck him
two blows, one on the shoulder and the other across the lips. The accused then withdrew. The blows were
heavy ones and rendered the victim senseless. After returning to consciousness he was able, with great
difficulty, to reach his house.

According to the testimony of the physician who examined Briones after the assault, the wound on the
shoulder was about 18 centimeters long and, at the point of greatest profundity, 4 to 5 centimeters deep. The
wound cut through all of the muscles of the shoulder, through the capsular ligament, and into the bone a
distance of 2½ centimeters. The arm has lost about 60 per cent of its strength and usefulness, and Briones is
unable, and will be unable, to engage in his usual occupation. This injury is permanent.

The second wound, the one across the mouth, intersected both lips.itc@alf The upper lip was cut away in part,
while a portion cut from the lower lip still hanging by a small portion of the skin when first seen by a doctor.
Attempts were made by the surgeon to sew this piece to the lower lip. He finally succeeded and, although the
parts have grown together, the lower lip is paralyzed and Briones is able to speak only by placing his hand
against the lower lip and holding it in position while he articulates.

These injuries were cured, so far as cure was possible, in about forty days at an expenses of P300.
From the evidence in this case we have no doubt whatever that the accused are guilty of the acts charged in
the information. Briones recognized all three as they attacked him and detailed clearly and satisfactorily what
each one did. The only question calling for discussion in this case is one raised by the private prosecutor, who
insists that the solicitor-general, in this court, has not properly qualified the crime, the latter insisting that the
crime islesiones graves instead of frustrated murder.

In support of his contention that the crime is lesiones graves and not frustrated murder, the solicitor-general
says:

The trial court found that the crime committed was frustrated murder, with the aggravating circumstance
of premeditation.

There exist, it is true, certain circumstances which appear to sustain this conclusion of the court: The
use of bolos, which in themselves are deadly weapons; the words "we are going to kill you" which
Maghirang used to Briones when the attack was made, and which were followed immediately by the
blow across the face; the ambush and the unexpected and sudden assault, all appear to sustain the
contention that there was an intention to kill, induced as the trial court said, by the insult which they
supposed had been offered them the night before.

But an examination of the doctrine of this court in the case of U. S. vs. Duruelo (7 Phil. Rep., 497); U. S. vs.
Trinidad (4 Phil. Rep., 152); U. S. vs. Dagalea (4 Phil. Rep., 398); U. S. vs. Manlalang (6 Phil. Rep., 339),
induces us to believe that the crime committed is that of lesiones graves (serious injuries) described and
punished in paragraph 2, article 416 of the Penal code, with the aggravating circumstance of treachery. That is
to say, although the information was for frustrated murder and that was the crime found by the trial court to
have been committed, the facts demonstrate that the accused are guilty simply of lesiones graves for the
reason that the accusation did not prove on the trial that the intention or the purpose was to kill, for, although
one of the accused was armed with a bolo and the other with a club, and Briones lay upon the ground on his
back, the wounds, nor were they located in a fatal spot; and yet, in spite of that, the accused did not continue
the assault in order to effectuate his death, nor did they use the bolo with which to deliver the fist blow,
although they were not prevented by anybody from consummating their intention to kill him if they had such a
purpose. It is necessary to take into consideration the aggravating circumstance of treachery in view of the fact
that Briones was attacked from behind and suddenly, without having been given an opportunity to offer any
resistance."

We are disposed to agree with the theory of the Solicitor-General, in spite of the strong argument advanced by
the private prosecutor, that the crime committed was really frustrated murder. According to the provisions of
the Penal Code, article 3, "a felony is frustrated when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator."

It is clear to our minds that, in this particular case, the accused did not perform "all of the acts of execution
whichshould produce the felony as a consequence." The wounds were not located in a vital spot. Neither of
them was mortal nor likely to produce death; in other words, the wounds inflicted were not such as "should"
produce death, nor such as would naturally and ordinarily produce death.

The Lim San case (17 Phil. Rep., 273) is illustrative of the conditions necessary to present a case of frustrated
murder. There the would inflicted was such as "should" have produced death and would necessarily have
produced death if the injured person had not been instantly taken to a hospital, his intestines replaced and his
abdomen properly closed. While the information charged attempted murder, we found the accused guilty of
frustrated murder upon the ground that he performed all of the acts which should produced death, which acts,
nevertheless, did not produce death by reason of causes independent of the will of the perpetrator. in the case
before us the accused did not perform all of the acts necessary to produce death nor was the life of the
complaining witness saved by causes independent of the will of the perpetrator. In other words, the accused in
this case did not perform all of the acts which "should" produce death.
Nor is the crime attempted murder; for, in order that the crime be qualified as such, the offender must
commence "the commission of the felony directly by over acts" but must "not perform all of the acts of
execution which constitute the felony by reason of some cause or accident other than his own voluntary
desistance."

In the case at bar the accused voluntarily desisted from injuring the victim further.1awphil.net They probably
knew, which was the fact, that the injuries were not inflicted in a vital part of the body and were not such as
"should" produce death. This presents a condition from which we cannot say the crime can neither frustrated
nor attempted murder. (U. S. vs. Marasigan, 11 Phil. Rep., 27; U. S. vs. Domingo, 18 Phil. Rep., 250; U. S. vs.
Montenegro, 15 Phil. Rep., 1; U. S. vs. Samea, 15 Phil. Rep., 227; U. S. vs. Maquiraya, 14 Phil. Rep., 243; U.
S. vs. Taguibao, 1 Phil. Rep., 16; U. S. vs. Sabio, 2 Phil. Rep., 485; U. S. vs. Dagalea, 4 Phil. Rep., 398; U.
S. vs. Trinidad, 4 Phil. Rep., 152; U. S. vs. Redion, 4 Phil. Rep., 500; U. S. vs. Duruelo, 7 Phil. Rep., 497; U.
S. vs. Barnes, 8 Phil. Rep., 59.)

As a necessary result of these considerations, the crime must be characterized as lesiones graves, as stated
by the solicitor-general. There being present the aggravating circumstances of alevosia,
premeditation, despobladoand superior force, the penalty must be imposed in its maximum degree.

The judgment of conviction is reversed and the accused are hereby each convicted of the crime of lesiones
graves and sentenced each to six years eight months and twenty-one days of prision mayor, to the
accessories provided by law, to indemnify the offended party in the sum of P400 and to be jointly and severally
liable therefor, and to pay the costs.

Arellano, C.J., Torres and Araullo, JJ., concur.

Trent, J., concurs in the result.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26298 January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.

Hermogenes Caluag for appellant.

Attorney-General Jaranilla for appellee.

OSTRAND, J.:

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

The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the defendant
endeavored to have carnal intercourse with her, but there may be some doubt whether he succeeded in penetrating the
vagina before being disturbed by the timely intervention of the mother and the sister of the child. The physician who
examined the genital organ of the child a few hours after the commission of the crime found a slight inflammation of the
exterior parts of the organ, indicating that an effort had been made to enter the vagina, but in testifying before the court he
expressed doubts as to whether the entry had been effected. The mother of the child testified that she found its genital
organ covered with a sticky substance, but that cannot be considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape
consequently was impossible of consummation; and that, therefore, the offense committed should be treated only
as abusos deshonestos. We do not think so. It is probably true that a complete penetration was impossible, but such
penetration is not essential to the commission of the crime; it is sufficient if there is a penetration of the labia. In the case
of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the offended party was a child of the age of 3
years and 8 months the testimony of several physicians was to the effect that her labia of the privates of a child of that
age can be entered by a man's male organ to the hymen and the defendant was found guilty of the consummated crime
rape.

There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is entitled to
the benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that he was living in the
house of the parents of the child as their guest, the aggravating circumstance of abuse of confidence existed and the
penalty must therefore be imposed in its maximum degree.

The judgment appealed from is modified and the defendant-appellant is hereby found guilty of the crime of frustrated rape
and is sentenced to suffer twelve years of prision mayor, with the accessory penalties prescribed by law, and with the
costs in both instances. So ordered.

Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

In my opinion, the accused is guilty of raping a child 3 years and 11 months of age. It is consummated rape according to
the evidence of record, the findings of the trial judge, and our decisions. (People vs. Hernandez [1925], 49 Phil., 980;
People vs. Oscar [1925], 48 Phil., 527.) The instant case is on all fours with the case ofKenney vs. State (65 L. R. A., 316),
cited in the majority decision. In the Kenny case, the penalty was death, and here for this horrible crime, should be placed
in the maximum degree or seventeen years, four months, and one day imprisonment, as imposed by the trial court.
Accordingly, my vote is for affirmance of the judgment.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 33463 December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BASILIO BORINAGA, defendant-appellant.

Paulo Jaro for appellant.

Attorney-General Jaranilla for appellee.

MALCOM, J.:

Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality
of Calubian, Leyte, contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was
associated with Lawaan in the construction of the corral. On the morning of March 4, 1929, Lawaan, with some
of his men, went to Mooney's shop and tried to collect from him the whole amount fixed by the contract,
notwithstanding that only about two-thirds of the fish corral had been finished. As was to be expected, Mooney
refused to pay the price agreed upon at that time. On hearing this reply of Mooney, Lawaan warned him that if
he did not pay, something would happen to him, to which Mooney answered that if they wanted to do
something to him they should wait until after breakfast, Lawaan then left with his men, and Mooney, after
partaking of his morning meal, returned to his shop.

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He
had taken a seat on a chair in front of the Perpetua, his back being to the window. Mooney had not been there
long when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the
latter, the knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a
result of the force of the blow, but was not injured. Borinaga ran away towards the market place. Before this
occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is
an American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but
only the back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first
attack, he returned, knife in hand, to renew it, but was unable to do so because Mooney and Perpetua were
then on their guard and turned a flashlight on Borinaga, frightening him away. Again the same night, Borinaga
was overheard stating that he had missed his mark and was unable to give another blow because of the
flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in it.

The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of
Leyte for the crime of frustrated murder. The defense was alibi, which was not given credence. The accused
was convicted as charged, by Judge Ortiz, who sentenced him to fourteen years, eight months, and one day of
imprisonment, reclusion temporal, with the accessory penalties and the costs.

The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish
that murder was in the heart and mind of the accused. More than mere menaces took place. The aggressor
stated his purpose, which was to kill, and apologized to his friends for not accomplishing that purpose. A
deadly weapon was used. The blow was directed treacherously toward vital organs of the victim. The means
used were entirely suitable for accomplishment. The crime should, therefore, be qualified as murder because
of the presence of the circumstance of treachery.
The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the
appeal, is: Do the facts constitute frustrated murder or attempted murder within the meaning of article 3 of the
Penal Code? Although no exact counterpart to the facts at bar has been found either in Spanish or Philippine
jurisprudence, a majority of the court answer the question propounded by stating that the crime committed was
that of frustrated murder. This is true notwithstanding the admitted fact that Mooney was not injured in the least.

The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the
attack. Nothing remained to be done to accomplish the work of the assailant completely. The cause resulting in
the failure of the attack arose by reason of forces independent of the will of the perpetrator. The assailant
voluntarily desisted from further acts. What is known as the subjective phase of the criminal act was passed.
(U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)

No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that of
frustrated murder, for the facts disclose a wanton disregard of the sanctity of human life fully meriting the
penalty imposed in the trial court.

Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance
against the appellant.

Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions

VILLA-REAL, J., dissenting:

We dissent from the opinion of the majority in so far as it finds the defendant-appellant guilty of the crime of
frustrated murder instead of that of an attempt to commit murder.

Article 3 of the Penal Code provides as follows:

ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those which are
consummated.

A felony is frustrated when the offender performs all the acts of execution which should produce the
felony as a consequence, but which, nevertheless, do no produce it by reason of causes independent
of the will of the perpetrator.

There is an attempt when the offender commences the commission of the felony directly by overt acts,
and does not perform all the acts of execution which constitute the felony by reason of some cause or
accident other than his own voluntary desistance.

The pertinent facts as found by the court below and by this court are the following:

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He
had taken a seat on a chair in front of Perpetua, his back being to the window. Mooney had not been there
long when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the
latter, the knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a
result of the force of the blow, but was not injured. Borinaga ran away towards the market place. Before this
occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is
an American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but
only the back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first
attack, he returned, knife in hand, to renew it, but was unable to do so because Mooney and Perpetua were
then on their guard and turned a flashlight on Borinaga, frightening him away. Again that same night, Borinaga
was overheard stating that he had missed his mark and was unable to give another blow because of the
flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in it.

Since the facts constituting frustrated felony and those constituting an attempt to commit felony are integral
parts of those constituting consummated felony, it becomes important to know what facts would have been
necessary in order that the case at bar might have been a consummated murder, so that we may determine
whether the facts proved during the trial constitute frustrated murder or simply an attempt to commit murder.

In order that the crime committed by the defendant-appellant might have been a consummated murder it would
have been necessary for him to have inflicted a deadly wound upon a vital spot of the body of Mooney, with
treachery, as a result of which he should have died.

Since according to the definition given by the Code a frustrated felony is committed "when the offender
performs all the acts of execution which should produce the felony as a consequence, but which, nevertheless,
do not produce it by reason of causes independent of the will of the perpetrator" let us examine the facts of
record to find out whether the said defendant-appellant has performed all the acts of execution which should
produce the murder of Mooney as a consequence. The prisoner at bar, intending to kill Mooney, approached
him stealthily from behind and made movement with his right hand to strike him in the back with a deadly knife,
but the blow, instead of reaching the spot intended, landed on the frame of the back of the chair on which
Mooney was sitting at the time and did not cause the slightest physical injury on the latter. The acts of
execution performed by the defendant-appellant did not produce the death of Mooney as a consequence nor
could they have produced it because the blow did not reach his body; therefore the culprit did not perform all
the acts of execution which should produce the felony. There was lacking the infliction of the deadly wound
upon a vital spot of the body of Mooney.

It is true that the frame of the back of the chair stood between the deadly knife and the back of Mooney; but
what it prevented was the wounding of said Mooney in the back and not his death, had he been wounded. It is
the preventing of death by causes independent of the will of the perpetrator, after all the acts of execution
which should produce the felony as a consequence had been performed, that constitutes frustrated felony,
according to the law, and not the preventing of the performance of all the acts of execution which constitute the
felony, as in the present case. The interference of the frame of the back of the chair which prevented the
defendant-appellant from wounding Mooney in the back with a deadly knife, made his acts constitute an
attempt to commit murder; for he had commenced the commission of the felony directly by overt acts, and did
not perform all the acts of execution which constitute the felony by reason of a cause or accident other than his
own voluntary desistance.

The foregoing considerations force us to the conclusion that the facts alleged in the information and proved
during the trial are not sufficient to constitute the crime of frustrated murder, but simply the crime of an attempt
to commit murder.

Johnson and Street, JJ., concur.

 
 EN BANC

[G.R. No. 129433. March 30, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.

DECISION

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold
of another emasculation of the stages of execution of rape by considering almost every attempt at sexual
violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there
is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself,
to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be
considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be
considered a deadly fait accompli, which is absurd.

In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim
since by it he attained his objective. All the elements of the offense were already present and nothing more
was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it.
We ruled then that perfect penetration was not essential; any penetration of the female organ by the male
organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ,
even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for
consummated rape. We distinguished consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were performed as the offender merely
commenced the commission of a felony directly by overt acts.[3]The inference that may be derived therefrom is
that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in
whatever degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the
female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for
consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous
with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom
line is that touching mustbe inextricably viewed in light of, in relation to, or as an essential part of, the process
of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be
tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be
gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the
crime committed amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether rape has been committed either in its
attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two,
despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference
between life and death for the accused - a reclusive life that is not even perpetua but only temporal on one
hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar
cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our
field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape
would no longer be possible in light of the view of those who disagree with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a
quo to the extreme penalty of death,[5] hence this case before us on automatic review under Art. 335 of the
Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the afternoon, Ma.
Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of
their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at
the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing
the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel whose pajamas or
"jogging pants" and panty were already removed, while his short pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused, "P
- t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He
pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus
prompting her brother, a cousin and an uncle who were living within their compound, to chase the
accused.[8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held
the accused at the back of their compound until they were advised by their neighbors to call
the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the
charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run
an errand for her.[9] He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back
when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position
that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her
child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called
for help from her brothers to stop him as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him
and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata
but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation
was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo
raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente
prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of
statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00
for moral damages,P25,000.00 for exemplary damages, and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her
narration should not be given any weight or credence since it was punctured with implausible statements and
improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for
him to commit the rape considering that Crysthels younger sister was also in the room playing while Corazon
was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses
and the fact that the episode happened within the family compound where a call for assistance could easily be
heard and responded to, would have been enough to deter him from committing the crime. Besides, the door
of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was
almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from
where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused
and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of
Crysthels private parts more than bolsters his innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo
with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly
"already removed" and that Primo was "forcing his penis into Crysthels vagina." The gravamen of the offense
of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the
Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty,
from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the
offended party being below seven (7) years old. We have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of
the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge.[10] But the act of touching should be understood here as
inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of
the mons pubis or the pudendum.

In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the attackers penis
merely touched the external portions of the female genitalia were made in the context of the presence or
existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a
limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless
held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in
vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt
his organ on the lips of her vulva,[12] or thatthe penis of the accused touched the middle part of her
vagina.[13] Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking
or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victims vagina, or
the mons pubis, as in this case. There must be sufficient and convincing proof that the penis
indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for
an accused to be convicted of consummated rape.[14] As the labias, which are required to be "touched" by the
penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with
the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching
the labia majora or the labia minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area,
e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is
the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next
layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the
inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath
the labia majora is the labia minora.[15] Jurisprudence dictates that the labia majora must be entered for rape to
be consummated,[16] and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of
the surface of the female organ or touching themons pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of
either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female
organ,"[17] but has also progressed into being described as "the introduction of the male organ into the labia of
the pudendum,"[18]or "the bombardment of the drawbridge."[19] But, to our mind, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of
passion."

A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that
Primos penis was able to penetrate Crysthels vagina however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that
she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her
childrens room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive
lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former
was allegedly in a kneeling position, which Corazon described thus:

Q: How was Primo holding your daughter?

 A: (The witness is demonstrating in such a way that the chest of the accused is pinning down
the victim, while his right hand is holding his penis and his left hand is spreading the legs of the
victim).

It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an unbridled
observation impossible. Not even a vantage point from the side of the accused and the victim would have
provided Corazon an unobstructed view of Primos penis supposedly reaching Crysthels external genitalia,
i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his
movements from Corazons sight, not to discount the fact that Primos right hand was allegedly holding his penis
thereby blocking it from Corazons view. It is the burden of the prosecution to establish how Corazon could
have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not
enough that she claims that she saw what was done to her daughter. It is required that her claim be properly
demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint
of serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt
in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed
innocent.

Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely
appearance, thus giving her the opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain where he is and
persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered
or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon
learning of Corazons presence would have been to pull his pants up to avoid being caught literally with his
pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only
to desist from but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the
court -

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she readily said, "No." Thus -

Q: But did his penis penetrate your organ?

A: No, sir.[20]

This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this
case was consummated. It has foreclosed the possibility of Primos penis penetrating her vagina, however
slight. Crysthel made a categorical statement denying penetration,[21] obviously induced by a question
propounded to her who could not have been aware of the finer distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is
yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accusedtouched her organ there was sexual entry. Nor can it be
deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of
her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo
made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not even hint that Primo's penis was erect or
that he responded with an erection.[23] On the contrary, Corazon even narrated that Primo had to hold his penis
with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim.

Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the child's own
assertion that she resisted Primos advances by putting her legs close together;[24] consequently, she did not
feel any intense pain but just felt "not happy" about what Primo did to her.[25] Thus, she only shouted "Ayo'ko,
ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored
its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the
medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with
redness, or the hymenal tags were no longer visible.[26] None was shown in this case. Although a child's
testimony must be received with due consideration on account of her tender age, the Court endeavors at the
same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights
of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the
accused cannot be held liable for consummated rape; worse, be sentenced to death.

Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs
of physical injuries on complaining witness body to conclude from a medical perspective that penetration had
taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen
does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was
sexual contact between the accused and the victim.[27]

In cases of rape where there is a positive testimony and a medical certificate, both should in all respects
complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest
variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is
necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the
female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates
attempted rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own spontaneous
desistance. All the elements of attempted rape - and only of attempted rape - are present in the instant case,
hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense
charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal,
the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate
Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty
to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of
which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while
the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is
from six (6) years and one (1) day to twelve (12) years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty
of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of
ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten
(10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days
of reclusion temporal medium as maximum. Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Panganiban, J., in the result.

[1]
People v. Ceilito Orita alias "Lito," G.R. No. 88724, 3 April 1990, 184 SCRA 105.
[2]
People v. Eriia, 50 Phil. 998 (1927)
[3]
See Note 1.
[4]
People v. Quinaola, G.R. No. 126148, 5 May 1999.
[5]
Decision penned by Judge Benjamin T. Antonio, RTC-Br. 170, Malabon, Metro Manila (Crim. Case No. 16857-MN)
[6]
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, effective on 31 December 1993.
[7]
"Ayoko," apparently is a contraction of "ayaw ko." "Ayoko, ayoko" means "I dont like, I dont like."
[8]
Corazons brother Vicente Plata responded to her call, as well as others living within the compound namely, Criselda
Carlos Manalac, Fernando Bondal, Jose Carlos and Reynoso Carlos.
[9]
Accused alleged that the charge of rape was merely concocted by Ma. Corazon Pamintuan because of his refusal to buy
medicine for her, and perform the other tasks asked of him by her relatives.
[10]
See the following American cases where the doctrine originated: Kenny v. State, 65 L.R.A. 316; Rodgers v. State, 30
Tex. App. 510; Brauer v. State, 25 Wis. 413, as cited in People v. Oscar, 48 Phil. 528 (1925)
[11]
G.R. No. 104947, 30 June 1994, 233 SCRA 573.
[12]
People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557; People v. Hangdaan, G.R. No. 90035, 13
September 1991, 201 SCRA 568; People v. De la Pea, G.R. No. 104947, 30 June 1994, 233 SCRA 573; People v. Clopino,
G.R. No. 117322, 21 May 1998, 290 SCRA 432; People v. Quinaola, G.R. No. 126148, 5 May 1999.
[13]
People v. Navarro, G.R. No. 96251, 11 May 1993, 221 SCRA 684.
[14]
In People v. Quinaola (G.R. No. 126148, 5 May 1999) the Court held the word "touching" to be synonymous with the
entry by the penis into the labia declaring that "x x x the crime of rape is deemed consummated even when the mans penis
merely entered the labia or lips of the female organ, or as once said in a case, by the mere touching of the external
genitalia by the penis capable of sexual act x x x x"
[15]
Mishell, Stenchever, Droegemueller, Herbst Comprehensive Gynecology, 3rd Ed., 1997, pp. 42-44.
[16]
People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498; People v. Galimba, G.R. Nos. 111563-64,
20 February 1996, 253 SCRA 722; People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14;
People v. Lazaro, G.R. No. 99263, 12 October 1995, 249 SCRA 234; People v. Rejano, G.R. Nos. 105669-70, 18 October
1994, 237 SCRA 627; People v. Salinas, G.R. No. 107204, 6 May 1994, 232 SCRA 274; People v. Palicte, G.R. No.
101088, 27 January 1994, 229 SCRA 543; People v. Arce, G.R. Nos. 101833-34, 20 October 1993, 227 SCRA 406;
People v. Garcia, G.R. No. 92269, 30 July 1993, 244 SCRA 776; People v. Tismo, No. L-44773, 4 December 1991, 204
SCRA 535; People v. Mayoral, G.R. Nos. 96094-95, 13 November 1991, 203 SCRA 528, People v. Hangdaan, G.R. No.
90035, 13 September 1991, 201 SCRA 568; People v. Caballes, G.R. Nos. 93437-45, 12 July 1991, 199 SCRA 152;
People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557.
[17]
People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432.
[18]
See Note 4.
[19]
People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498.
[20]
TSN, 7 October 1996, p. 20.
[21]
In Dulla v. CA (G.R. No. 123164, 18 February 2000) the Court considered the testimony of a child aged three (3) years
and ten (10) months old sufficient and credible even if she answered "yes" or "no" to questions propounded to her.
However, the victim therein, who was much younger than Crysthel in the instant case, demonstrated what she meant when
unable to articulate what was done to her, even made graphic descriptions of the accuseds penis and demonstrated the
push and pull movement made by the accused. Yet conspicuously, the Court in the Dulla case found the accused guilty
only of acts of lasciviousness on the basis of certain inconsistencies in the testimony of the victim on whether or not
petitioner took off her underwear.
[22]
In People v. Clopino (G.R. No. 117322, 21 May 1998) the Court rejected the argument of the accused that he should
only be convicted of either attempted rape or acts of lasciviousness. It adopted the reasoning of the Solicitor General and
declared that it was impossible for the penis of accused-appellant not to have touched the labia of the pudendum in trying
to penetrate her. However, such logical conclusion was deduced in the light of evidence presented that accused-appellant
made determined attempts to penetrate and insert his penis into the victims vagina and even engaged her in foreplay by
inserting his finger into her genitalia. The same inference cannot be made in the instant case because of the variance in the
factual milieu.
[23]
Decisions finding the accused guilty of consummated rape even if the attacker's penis merely touched the female
external genitalia were made in the context of the presence of an erect penis capable of full penetration, failing in which
there can be no consummated rape (People v. De la Pea, see Note 11)
[24]
See Note 16, p. 21.
[25]
Ibid.
[26]
People v. Villamayor, G.R. Nos. 97474-76, 18 July 1991, 199 SCRA 472; People v. Palicte, G.R. No. 101088, 27
January 1994, 229 SCRA 543; People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14; People v.
Gabris, G.R. No. 116221, 11 July 1996, 258 SCRA 663; People v. Gabayron, G.R. No. 102018, 21 August 1997, 278
SCRA 78.

[27]
Q: Will you tell the Court, what do you mean by this No. 1 conclusion appearing in Exhibit "A" which I quote "no
evident sign of extra-genital physical injury noted on the body of the subject at the time of the examination?"

A: That means I was not able to see injuries outside the genital of the victim, sir.

Q: I presumed (sic) that you conducted genital physical examination on the victim in this case?

A: Yes sir.

Q: And you also made the result of the genital physical examination shows (sic) that there is no injury on any part of the
body of the patient, correct, Doctor?

A: Yes sir.

Q: There was no medical basis for saying that might have a contact between the patient and the accused in this case?

A: Yes sir (TSN, 8 October 1996, pp. 3-4)

 

 
 THIRD DIVISION

[G.R. No. 138972-73. September 13, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. EUGENIO MARQUEZ y BRIONES, JOSE MAGTIBAY,
ANSELMO MAGTIBAY and NICASIO BACOLO, accused, EUGENIO
MARQUEZ y BRIONES,appellant.

DECISION
PANGANIBAN, J.:

We reiterate the doctrine that, in the assessment of the credibility of witnesses and their testimonies, the findings of
trial courts deserve utmost respect.

The Case

Eugenio Briones y Marquez appeals the May 12, 1998 Judgment[1] rendered by the Regional Trial Court (RTC) of
Lucena City, Branch 53. In Criminal Case No. 95-555, the RTC convicted him of frustrated robbery with homicide and
frustrated homicide; and in Criminal Case No. 95-557, of illegal possession of firearm. The charges stemmed from a bus
holdup, which resulted in the killing of the bus conductor and the wounding of a police officer on February 17, 1995.
In Criminal Case No. 95-555, appellant, Jose Magtibay, Anselmo Magtibay and Nicasio Bacolo were charged in an
Amended Information dated November 22, 1995,[2] as follows:

That on or about the 17th day of February 1995, along Maharlika Highway at Barangay Sampaloc II, Municipality of
Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
armed with a caliber .38 Smith & Wesson revolver and bladed and pointed weapons, conspiring and confederating
together and mutually helping one another, with intent to gain and to rob, by means of force, violence, threats and
intimidation, did then and there willfully, unlawfully and feloniously hold-up JAC Liner bus with Plate No. NYE-839,
thus performing all the acts of execution which should have produced the crime of robbery as a consequence, but which
nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely
intervention of SPO1 Rizaldy Merene, one of the passengers of said bus; and that on the occasion of said robbery, said
accused, still in pursuance of their conspiracy, with intent to kill and taking advantage of their superior strength, did then
and there willfully, unlawfully and feloniously attack, and shoot with said firearm Joselito Estrareja Halum, the conductor
of said bus, thereby inflicting upon the latter gunshot wound, which directly caused his death, and also inflicting gunshot
wounds and injuries on vital part of the body of SPO1 Rizaldy Merene, thus performing all the acts of execution which
should have produced the crime of homicide as a consequence, but which nevertheless did not produce it by reason of
causes independent of the will of the accused, that is, by the timely and able medical attendance rendered to said SPO1
Rizaldy Merene, which prevented his death.[3]

In Criminal Case No. 95-557, appellant was indicted in an Information[4] dated May 24, 1995, as follows:

That on or about the 17th day of February 1995, at Barangay Sampaloc II, Municipality of Sariaya, Province of Quezon,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession, custody and control one (1) caliber .38 revolver Smith and Wesson, by
keeping and carrying the same without first securing the necessary license or permit, and further using the same in the
commission of an offen[s]e.
 During his arraignment,[5] appellant, assisted by Counsel de Oficio Uldarico Jusi, pleaded not guilty. The other
accused, except Jose Magtibay, remained at large. The two cases were consolidated and tried jointly. Thereafter, on May
12, 1998, the trial court rendered its assailed Decision, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, the Court in Criminal Case No. 95-555 finds Eugenio Marquez y Briones guilty
beyond reasonable doubt of the crime of frustrated robbery with homicide and frustrated homicide punished under Article
297 of the Revised Penal Code and applying the Indeterminate Sentence Law, with no mitigating or aggravating
circumstance present, Eugenio Marquez is sentenced to suffer reclusion perpetua and he is ordered to pay the costs.

Eugenio Marquez is ordered to pay the heirs of Joselito Halum P50,000.00 as death indemnity. He is also ordered to
reimburse SPO1 Rizaldy Merene the sum of P9,000.00 which he incurred for his medical treatment.

The case against Jose Magtibay is dismissed for insufficiency of evidence. His release from detention unless he is being
detained for another cause, is ordered.

In Criminal Case No. 95-557 the Court finds Eugenio Marquez y Briones guilty beyond reasonable doubt of the crime of
illegal possession of firearm punished under Section I of Presidential Decree No. 1866 as amended by Republic Act No.
8294 and, applying the Indeterminate Sentence Law, [of] the commission of homicide as an aggravating
circumstance. Eugenio Marquez is hereby sentenced to suffer the penalty of four (4) years and two (2) months of prision
correccional as minimum to six (6) years of prision correccional as maximum and he is ordered to pay a fine
of P15,000.00 and to pay the costs.

The officer-in-charge of this court is directed to deposit the caliber .38 revolver Smith and Wesson (Exhibit A in Criminal
Case No. 95-555 and Exhibit A in Criminal Case No. 95-557) and the envelope with the three (3) live bullets and one slug
(Exhibit A-1 in Criminal Case No. 95-555 and Exhibit A-1 in Criminal Case No. 95-557) with the Philippine National
Police at Camp Nakar, Lucena City, in accordance with existing rules.[6]

The Facts
Version of the Prosecution

The solicitor general summarized the evidence for the prosecution in this wise:[7]

[O]n the evening of February 17, 1995, a JAC Liner bus driven by Modesto Ferrer with Joselito Halum as conductor was
on its way from Metro Manila to Lucena City. Among the passengers was SPO1 Rizaldy Merene of the Southern Police
District Command. Merene was seated directly behind the driver (TSN, p. 3, February 9, 1996). Another passenger,
Manuel Fleta, occupied the third seat on the left side of the bus. When the bus reached the Mazapan junction in Barangay
Santo Cristo, Sariaya, Quezon, four men boarded the bus (TSN, p. 6, September 9, 1996).

Two or three kilometers away from the Mazapan junction, two passengers stood up as if to alight from the bus (TSN, PP.
2-4, February 16, 1996[)]. When they reached the front portion of the bus, however, one of the men (later found to be
appellant Marquez) poked a gun at the driver and announced a hold-up. His companion poked a knife at the
conductor[.] Merene who was seated right behind quickly drew his firearm, but Marquez was able to fire at him
first. Although hit, Merene returned fire.Panicking, Marquez and his companion jumped out of the bus. The conductor,
Halum, fell to the floor of the bus, fatally wounded (TSN, pp. 4-7, February 9, 1996; pp. 7-8, September 9, 1996)[.]

After the hold-up men left the bus, Merene asked the driver to bring him to the nearest hospital where he was treated for
his wound.

Manuel Fleta, who witnessed the announcement of the hold-up and the exchange of fire between one of the hold-up men
and SPO1 Merene, went to the PNP Sariaya station to report the incident. Chief of Police Concordio Tapulayan and PO3
Enrico Perez accompanied Fleta to the place where the incident happened and later to the Greg Hospital where SPO1
Rizaldy Merene was questioned (TSN, p. 12, December 16, 1996). While they were there, the police officers received a
radio message from the Candelaria police station informing them that a wounded man was brought to the Bolaos Hospital
in Candelaria (Ibid., at p. 13). This was followed by another broadcast declaring that the wounded man was transferred to
the Quezon Memorial Hospital in Lucena City. With this information, PO3 Perez with two other policemen and Manuel
Fleta went to the Quezon Memorial Hospital. At the emergency room there, Manuel Fleta identified the wounded man to
the police officers as one of the hold-up men, Eugenio Marquez (TSN, pp. 14-15, December 16, 1996).

At the time the hold-up inside the JAC Liner bus was taking place, spouses Mauricio and Zenaida Ilao and their children
were watching a movie inside their house at Barangay Sampaloc II, Sariaya, Quezon. Their house was about 30 meters
away from the Maharlika Highway and 100 meters away from the Lagnas bridge. A few minutes after the aborted hold-up
(which the Ilao family was unaware of), a man suddenly appeared at the door of their house, naked above the waist,
bloodied and asking for help (TSN, PP. 1-3, March 12, 1997). Mauricio asked the man if he knew a person in their
barangay. The man mentioned the name of Julie Ann Veneosa who, the couple knew, was working at the poultry farm
nearby. Zenaida Ilao, accompanied by her daughter Irene, went to fetch Julie Ann. They returned with Julie Ann on board
a jeep (Ibid., p. 4). When Julie Ann arrived, she recognized him as Eugenio Marquez and immediately brought him to the
hospital in Candelaria (Ibid., at p. 5).

The next morning, Mauricio Ilao was surprised to find a firearm at the back of their house. He immediately went to the
Sariaya police station to report this. Four policemen went with him to his house where the .38 caliber gun with three live
bullets was found (TSN, pp. 18-19, March 12, 1997).

Version of the Defense

On the other hand, appellants version of the incident is as follows:[8]

On February 17, 1995, herein accused-appellant went to the house of Julie Anne Venenosa, a distant relative and friend, in
Montecillo, Sariaya, Quezon. Upon arriving thereat at about 6:00 in the evening, he was informed by Gladys Venenosa,
mother of Julie Anne, that the latter was still at her work. After spending some ten (10) minutes in that house, he decided
to go to the place of work of Julie Anne in Sampaloc II at Max Tabangcora Poultry, and he went to the junction at Sto.
Cristo, Sariaya to wait for any passenger vehicle, and after sometime he hailed and boarded an air-conditioned bus, JAC
Liner, with plate No. NYE 839, which was then with many passengers. He boarded said bus alone. After he ha[d] boarded
the bus some other six passengers also hailed and boarded said bus. Reaching the place of his destination at Sampaloc II,
Sariaya, he stood up and walked towards the conductor to tell the latter that he was unboarding, but when he was barely
two seats away from the driver, herein accused-appellant heard some[one] saying hold-up ito, and saw a man poking his
gun at the driver of the bus, and suddenly there was exchange of fire. He was about to go back to his seat but he was hit by
a bullet. During the exchange of fire many of the passengers jumped out of the bus, and he also jumped out. After jumping
out of the bus he saw a house, some twenty meters away, which [later], turned out to be owned by Zenaida Ilao, from
whom he requested that his cousin Julie Anne Venenosa be fetched to take him to a hospital. First he was taken to
Bolanos Hospital, then to Quezon Memorial Hospital, then later transferred to Philippine General Hospital, where he was
confined for a week. When he was released from the hospital, he was taken by Sariaya Police to the Municipal Jail, and
after two (2) months, he was transferred to the Provincial Jail[.] (TSN, Eugenio Marquez y Briones, August 11, 1997, pp.
3-10)

When arraigned, he pleaded NOT GUILTY to the two (2) charges.

Prosecution presented its witnesses and rested its case, and so with the defense. Herein accused-appellant himself testified
in open court.

The Trial Courts Ruling

In convicting appellant of frustrated robbery with homicide and frustrated homicide, the court a quo gave full faith
and credence to the testimonies of the primary prosecution witnesses, SPO1 Rizaldy Merene and Manuel Fleta. It
underscored their straightforward and cohesive identification of appellant as the culprit who had announced the holdup
and exchanged gunfire with Merene, resulting in the wounding of the police officer and the killing of the bus
conductor. The court a quo debunked the assertion of appellant that he was a mere passenger who had been injured in the
crossfire. It was convinced that his actions and the circumstances surrounding the incident indubitably showed his
participation in the attempted robbery, as well as in the consequent wounding of Merene and death of the bus conductor.
The trial court likewise found appellant guilty beyond reasonable doubt of illegal possession of firearm. It stressed
the fact that the gun which was subsequently identified by Merene as the weapon used in the attempted robbery -- was
found at the back of Mauricio Ilags house, the place where appellant had sought solace after being injured.
Hence, this appeal.[9]

The Assigned Errors

In his Brief, appellant bewails the following alleged errors of the trial court:
I

In convicting the accused on the basis of the testimonies of SPO1 Rizaldy Merene and Manuel Fleta, despite grave
contradictions on material points in their testimonies, and in concluding that appellant was the same person who engaged
in fire fight with said police officer, despite absence of any direct evidence, or sufficient circumstantial evidence pointing
at him as the person who announced the hold up and as the person who engaged in the exchange of fire with said police
officer.

II

In convicting the appellant of the crimes charged despite doubt as to his identity and culpability, and in not acquitting him
on ground of reasonable doubt; in convicting the appellant under Section 1, PD 1866, despite the fact that the subject .38
revolver was not found in his possession.[10]

The Courts Ruling

The appeal is partly meritorious.

First Issue: Credibility of Witnesses

In impugning the testimonies of Prosecution Witnesses SPO1 Rizaldy Merene and Manuel Fleta, appellant points out
the alleged ambivalence of their testimonies. He contends that these two witnesses differed in their narrations with regard
to the positions of the holduppers and the bus conductor during the holdup, even if the two were then seated near
them. That Merene admitted during trial that he was not sure if he had shot the holdupper during their gunfight is also
stressed by appellant. The latter further avers that, before the holdup was announced, Fleta had been watching a bus movie
and, during the gunfight, was crouching to avoid being hit; thus, this witness was not in a position to identify the culprit.
We are not persuaded. True, there is a marked discrepancy between the testimonies of Merene and Fleta as regards
the whereabouts of the bus conductor before, during and immediately after the holdup. It must be noted, however, that the
points of recall of the two witnesses were different. Merene was an active participant in the gunfight; thus, he could not be
expected to remember the peripherals of the incident. Fleta was a passive eyewitness; as such, he was able to observe
things that the former might have overlooked. Moreover, the Court has held that [t]otal recall or perfect symmetry is not
required as long as witnesses concur on material points.[11]
It must be emphasized that the above-mentioned testimonial disparity does not negate the fact that appellant
was positively identified by both witnesses as the malefactor who had announced the holdup and exchanged gunshots with
the police officer.There is no contrariety with regard to this vital fact. Both witnesses consistently, cohesively and
certainly identified appellant as the culprit. Merene testified thus:
Assistant Provincial Prosecutor Salamillas:

Q SPO1 Merene[,] on February 18, 1995 at about seven oclock to seven twenty do you [still] recall where you were?
A Yes sir.
Q Where were you then?
A I was abroad a bus JAC Liner Bus going to Lucena City from Manila.
Q At that time were there other passengers in that JAC Liner bus?
A Yes sir.
Q How many of them if you know?
A More or less fifteen passengers.
Q When the bus that you were then boarding was at the vicinity of Sariaya, Quezon can you still recall if some unusual
incident occurred during that time?
A Yes sir, there was.
Q What was that unusual incident that took place when the bus reached Sto. Cristo, Sariaya, Quezon?
A Two passengers alighted before reaching the Lagnas Bridge. Four men stood up inside the bus and the one who was
behind the driver announced a hold up.
Q Where were the other three at that time?
A One was positioned at the estribo running board, and the two were on the road. Four men alighted from the bus.
Q You stated that two of the passengers went down the bus how did it happen that four men alighted from the bus?
A When the two passengers alighted from the bus the two followed.
Q Do you know what these two men who alighted ahead [of] the two passengers did?
A One of the men poked a gun at the driver the other one poke[d] a knife [at] the conductor.
COURT:
Q Where was the conductor at that time?
A On the road.
Assistant Provincial Prosecutor Salamillas:
Q Do you know why the conductor alighted from the bus?
Atty. Jusi:
Incompetent.
COURT:
Sustained.
Assistant Provincial Prosecutor Salamillas:
Q Where was the conductor at that time when the hold up was announced?
A He was already on the ground near the door.
Q Why was he [on] the ground near the door?
Atty. Jusi:
Incompetent.
COURT:
 Sustained.
Q What did you do Mr. Witness when you heard that there was an announcement of hold up?
A As I was about to draw my .38 caliber firearm one of the hold[-]uppers who was poking his gun at the driver saw me
and he suddenly poked his gun at me and immediately fired a shot.
COURT:
Q How far were you from that holdupper who poked his gun at you?
A One seat away.
Q You were seated at the drivers side?
A Yes your Honor.
Assistant Provincial Prosecutor Salamillas:
Q How many times were you fired upon by the holdupper?
A Two times, sir.
Q Were you hit by the second shot?
A No sir.
Q What did you do after you felt that you were hit?
A I drew my .38 caliber gun and immediately fired at the holdupper.
Q What happened to the holdupper who fired at you?
A I think I hit the holdupper, after that he jumped out of the bus.
COURT:
At the time that you fired at the holdupper two of the robbers were already on the ground?
A Yes your Honor.
xxxxxxxxx
Q And when the holdupper jumped out of the bus where was the fourth holdupper?
A He was running away.
Q What about the other passengers at the bus[,] do you know what happened to them?
A They remained on their seats.[12]
xxxxxxxxx
Q If one or two of those persons [are] present in Court now will you be able to point [to] them?
A Yes sir.
Q Please point to him[.]
A Witness pointing to accused Eugenio Marquez.
Q What about the other person[,] can you point to him?
A Accused pointing to accused Jose Magtibay.
Q How about the two other holduppers[,] are [they] present in Court?
A They are not here.
Q If you will see them again [will] you recognize them?
 A Yes sir.
Q Can you still recall what was the participation of the accused Eugenio Marquez?
A He was the one who poked a gun at the driver and the one who shot me.[13]
Fleta, the other witness, narrated the holdup incident in this manner:

PROS. R. SALAMILLAS

Q Where were you on February 17, 1995 at about 7:00 to 7:15 in the evening?
A I was on board the passenger bus JAC Liner Bus, sir.
xxxxxxxxx
Q x x x [W]here did you come from at that time?
A From San Pablo City, sir.
Q In what particular place in the bus were you seated at that time?
A At the 3rd seat, right side of the conductor[] side.
xxxxxxxxx

COURT

xxxxxxxxx
Q [Was] there anything unusual that happened while the bus was negotiating the distance from San Pablo to Lucena
City?
A Yes, your Honor.
Q What was that unusual incident?
A There was a hold-up that happened, your Honor.
xxxxxxxxx
PROS. SALAMILLAS
Q Will you please tell the Honorable Court how that hold-up took place?
A At the junction near Mazapan, two passengers alighted from the bus then four (4) persons boarded the bus taking
their seats at the different parts of the bus.
xxxxxxxxx
PROS. SALAMILLAS
Q What happened immediately before the hold-up?
A Before the holdup one [of] the holduppers said, Dito na lang pala kami, sir.
xxxxxxxxx
Q Did the driver stop the bus?
A Yes, your Honor. One of the holduppers announced it was a hold up and he raised the revolver he was holding.[14]
xxxxxxxxx
Q After the announcement of the hold-up, what happened?
A There was an exchange of gunfire, sir.
 xxxxxxxxx
Q x x x [W]here did the exchange of gunfire come from?
A One coming from the person seated behind the drivers seat and the other one from the man beside the conductor
who announced the hold-up sir.
xxxxxxxxx
Q What about the person who announced the hold-up, what happened to him?
A They jumped out of the bus and they [fled], sir.
xxxxxxxxx
Q You said there were four men who held up this bus, if ever you will [see] them again will you be able to identify
them?
A I can recognize the one holding the revolver, sir.
Q If that man is in court now will you be able to identify him?
A Yes, sir.
Q Will you please point to him.
A That man, sir. (Witness pointing to a person who identified himself as Eugenio Marquez)[15]
xxxxxxxxx
ATTY. JUSI:
Q You claimed that the alleged robber who sat across the place where you were [was] the one who announced the
holdup?
A Yes, sir.
Q And after the announcement of the holdup it [was] also the person who announced the hold-up who raised his gun?
A Yes, sir.
Q And after the announcement of said hold up there was an exchange of fire?
A Yes, sir.
Q And you heard according to you four firing shots?
A Yes, sir.
Q And immediately after hearing the first firing shot you ducked at your seat and only after you stood up you found
out that the conductor was lying face down and the person who identified himself as a policeman ordered the
driver to bring him to the hospital, is that correct?
A Yes, sir.
Q You claimed during your direct testimony that the policeman who identified himself as such was seated at the back
of the drivers seat?
A Yes, sir.
Q By your answer, do I get from you that the alleged holdupper was at the back of the policeman considering that
according to you he was seated at the 3rd seat?
A No, sir. When he announced the hold up he was already there at the side of the driver.
Q It is not correct to say that he was [on] the 3rd seat when he announced the holdup?
A I did not say that he was [on] the third seat, sir.
COURT:
 Q The court would just like to find out if that man who was seated on the third seat behind the driver is the person who
also said dito na lang po pala kami[?]
A Yes, Your Honor, After that man said that he moved towards x x x the driver.
ATTY. JUSI:
Q And so he was on the right side of the driver when the shooting took place?
A He was not on the right side, he was on the side of the driver and conductor when the shooting took place, sir.
Q When the alleged holdupper said that dito na lang po pala kami did this allege holdupper immediately [stand] up and
[go] to the exit door of the bus?
A No, sir.
ATTY. JUSI:
Q Before the two holduppers allegedly alighted from the bus, did you notice whether the bus conductor also alighted?
A No, sir.
Q You mean he stood still near the driver[] seat and [let] the two companions of the holdupper to go down?
A Yes, sir.
Q Before the exchange of fire that you claimed that you notice[d] did you see what kind of firearm the policeman was
holding?
A Revolver also, sir.
Q And you cannot determine from whom or x x x how many shots were made by the policeman or the holdupper, only
four shots were heard by you?
A Yes, sir.
ATTY. JUSI:
Q You claimed that it was only on February 17, 1995 at 7:00 oclock in the evening more or less when you first saw the
person whom you just identified?
A Yes, sir.
Q And the second time that you saw him according to you was x x x today, is that correct?
A Yes, sir.
Q Do you have [such] photographic memory to remember the face of a person after a lapse of one year?
A I could remember, because that was a hold up, sir.
Q How about the other companion of the person whom you had just identified, if you could see them again, could you
recognize them?
A What I can recognize only is the one who drew the gun and announced the holdup, aside from that I could not
recognize the three others, sir.[16]
The quoted testimonies of Merene and Fleta indubitably establish that on February 17, 1995, between 7:00 and 7:20
p.m., a JAC Liner bus going to Lucena City was held up; and that appellant was identified as the culprit who had
announced the holdup and engaged Merene in a gunfight. The proximity of these witnesses to appellant, in addition to the
fact that there was no showing of ill will or motive on their part, give credence to their testimonies.
The Court regards as too incredulous appellants version of the holdup incident: that he was a mere passenger who --
caught, hit and wounded in the crossfire -- jumped off the bus to save himself. First, the JAC Liner bus was air-
conditioned, and so its windows were closed. Thus, the passengers would not have been able to immediately open and
jump from those windows. Second, because the gunfight happened in front, appellant could not have jumped out of the
bus from its door, which was located near that area. Lastly, given his gunshot wounds, the flight of appellant from the
scene of the crime casts doubts on his protestations of innocence; more important, he was positively identified as one of
the culprits.
We agree with the court a quos assessment of the credibility of the witnesses, specifically with regard to the
identification of appellant. In this case, we adhere to the legal truism that such assessment is accorded great weight and
respect, for the trial court had the opportunity to observe the witnesses demeanor and deportment as they testified before
it.[17] Likewise, we hold that appellants denial cannot prevail over the positive identification by credible witnesses.[18]

Second Issue: Crime and Punishment

Appellant was charged with, and eventually convicted of, frustrated robbery with homicide and frustrated homicide,
as well as violation of PD 1866 (illegal possession of firearms).
In robbery with homicide, it is imperative that the prosecution prove a direct relation between the robbery and the
killing. It must convincingly show that robbery was the original criminal design of the culprit, and that homicide was
perpetrated with a view to the consummation of the robbery, by reason or on occasion thereof.[19]
That appellant intended to rob the passengers of the JAC Liner bus is evident. The robbery was foiled, however,
when SPO1 Rizaldy Merene decided to fight back. Were it not for the presence and the bravery of this police officer,
appellant and his cohorts would have successfully consummated their original plan.
In the gunfight that ensued between appellant and Merene, bus conductor Joselito Halum was killed. Clearly, his
death occurred by reason or as an incident of the robbery. Even if it was merely incidental (he was caught in the crossfire),
still, frustrated robbery with homicide was committed.[20] With regard to the charge of frustrated homicide, appellant, in
shooting Merene almost pointblank, had performed all the acts necessary to kill the latter, who survived because of timely
medical intervention. Thus, appellants conviction for frustrated robbery with homicide and frustrated homicide must be
sustained.
On the other hand, we agree with the Office of the Solicitor General that the trial courts conviction of appellant for
violation of PD 1866 should be reversed; he should be acquitted. In crimes involving illegal possession of firearm, the
prosecution has the burden of proving the following: (1) the existence of the subject firearm and (2) the fact that the
accused who owns it does not have a license or permit to carry it.[21]
In the present case, it must be emphasized that the subject gun was not found in the possession of appellant; rather, it
was discovered at the back of the house of Mauricio Ilao, from whom the former had sought solace after the holdup
incident. While the prosecution, considering the circumstances, assumes that the gun was brought there by appellant, such
conjecture does not satisfy the elements of the crime; it is clearly not enough to prove beyond reasonable doubt that he
was guilty of illegal possession of firearm.
Furthermore, in People v. Molina,[22] this Court has ruled that the use of an unlicensed firearm merely aggravates a
killing and may no longer be the source of a separate conviction for the crime of illegal possession of a deadly
weapon. This doctrine was reiterated in People v. Feloteo[23] and People v. Narvasa.[24] In People v. Macoy[25] it was held
that, being favorable to the accused, the same may be invoked even if the illegal possession had been committed prior to
the effectivity of RA 8294 on July 6, 1997.[26]
In view, however, of the failure of the prosecution to prove illegal possession on the part of appellant, we cannot
even apply the Molina doctrine to aggravate the penalty.
WHEREFORE, the appeal is PARTIALLY GRANTED. The Decision of the Regional Trial Court in Criminal Case
No. 95-557 is REVERSED and SET ASIDE, and Appellant Eugenio Briones y Marquez is hereby ACQUITTED of
violation of PD 1866. However, his conviction for frustrated robbery with homicide and frustrated homicide, together
with the penalty imposed by the trial court in Criminal Case No. 95-555, is AFFIRMED.
SO ORDERED.
Melo, (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.
 [1]
Rollo, pp. 27-37; penned by Judge Guillermo R. Andaya.
[2]
Signed by Provincial Prosecutor Dante H. Diamante; rollo, p. 9.
[3]
Rollo, p. 2.
[4]
Ibid., p. 2. Also signed by Provincial Prosecutor Diamante.
[5]
Appellants arraignment in Criminal Case No. 95-557 was held on December 11, 1995; and in Criminal Case No. 95-
555, on December 13, 1995.
[6]
RTC Decision, pp. 10-11; rollo, pp. 36-37.
[7]
Rollo, pp. 93-96. Appellees Brief was signed by Assistant Solicitor General Carlos N. Ortega and Solicitor Luciano
Emmanuel L. Joson Jr.
[8]
Rollo, pp. 56-57. Appellants Brief was signed by Atty. Carmelito A. Montano of C.A. Montano Law Office.
[9]
This case was deemed submitted for resolution on December 26, 2000, upon receipt by this Court of Appellees Brief.
Appellants Brief was filed on March 17, 2000. The filing of a Reply Brief was deemed waived, as none was submitted
within the reglementary period.
[10]
Appellants Brief, pp. 1-2; rollo, pp. 53-54. All in upper case in the original.
[11]
People v. Pareja, 265 SCRA 429, December 9, 1996; citing People v. Cruza, 237 SCRA 410, October 7, 1994, per
Cruz, J.
[12]
TSN, February 9, 1996, pp. 3-6.
[13]
TSN, February 9, 1996, p. 10.
[14]
Direct Examination of Manuel Fleta, TSN, September 9, 1996, pp. 4-7.
[15]
Ibid., pp. 7-13.
[16]
Cross-examination of Manuel Fleta, TSN September 9, 1996, pp. 17-23.
[17]
People v. Mana-ay et al., November 20, 2000; People v. Merino, 321 SCRA 199, December 17, 1999; People v.
Patalinghug, 318 SCRA 116, November 16, 1999; People v. Tabones, 304 SCRA 787, March 17, 1999; People v. Batidor,
303 SCRA 335, February 18, 1999.
[18]
People v. Magbanua, 319 SCRA 719, December 3, 1999; People v. Larena, 309 SCRA 305, June 29, 1999; People v.
Hillado, 307 SCRA 535, May 24, 1999; People v. Lagarteja, 291 SCRA 142, June 22, 1998; People v. Caisip, 290 SCRA
451, May 21, 1998.
[19]
People v. Leonor, 305 SCRA 285, March 25, 1999; People v. Nang, 289 SCRA 16, April 15, 1998; People v. Sanchez,
298 SCRA 48, October 14, 1998; People v. Mendoza, 284 SCRA 705, January 23, 1998.
[20]
People v. Pecato, 151 SCRA 14, June 18, 1987
[21]
People v. Lazaro, 317 SCRA 435, October 26, 1999; People v. Bansil, 304 SCRA 384, March 10, 1999; People v.
Molina, 292 SCRA 742, July 22, 1998; People v. dela Rosa, 284 SCRA 158, January 16, 1998.
[22]
292 SCRA 742, July 22, 1998.
[23]
295 SCRA 607, September 17, 1998.
[24]
298 SCRA 637, November 16, 1998.
[25]
GR No. 126253, August 16, 2000.
[26]
For a discussion of this principle, see Panganiban, Transparency, Unanimity & Diversity, 2000 ed., pp. 260-261.
 

 
 EN BANC

[G.R. No. 143468-71. January 24, 2003]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FREEDIE LIZADA @ FREDIE

LIZADA, accused-appellant.

DECISION
CALLEJO, SR., J.:

This is an automatic review of the Decision[1] of the Regional Trial Court of Manila, Branch 54, finding
accused-appellant Freedie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and
meting on him the death penalty for each count.

I. The Charges

Accused-appellant[2] was charged with four (4) counts of qualified rape under four separate
Informations. The accusatory portion of each of the four Informations reads:

That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd designs, did then and there
willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.

XXX
That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.[3]

The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and
99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of
not guilty to each of the charges.[4] A joint trial then ensued.

II. Evidence of the Prosecution[5]

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children, namely:
Analia, who was born on December 18, 1985;[6] Jepsy, who was 11 years old, and Rossel, who was nine years
old.However, the couple decided to part ways and live separately. Rose left Bohol and settled in Manila with
her young children. She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252
Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She
secured a loan, bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her
house. She sold Avon products from house to house to augment her income. Whenever she was out of their
house, Rossel and Analia took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her,
removed her T-shirt and underwear. He then inserted his finger in her vagina. He removed his finger and
inserted his penis in her vagina. Momentarily, she felt a sticky substance coming out from his penis. She also
felt pain in her sex organ. Satiated, accused-appellant dismounted but threatened to kill her if she divulged to
anyone what he did to her. Accused-appellant then returned to his room. The incident lasted less than one
hour. Petrified by the threats on her life, Analia kept to herself what happened to her.[7]
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of
her and held her legs and arms. He then inserted his finger into her sex organ (fininger niya ako). Satiated,
accused-appellant left the room. During the period from 1996 to 1998, accused-appellant sexually abused
private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her
assignments. Accused-appellant was also in the sala. Rossel tended the video shop while his mother was
away. Analia went into her room and lay down in bed. She did not lock the door of the room because her
brother might enter any time. She wanted to sleep but found it difficult to do so. Accused-appellant went to his
room next to the room of Analia. He, however, entered the room of Analia. He was wearing a pair of short
pants and was naked from waist up. Analia did not mind accused-appellant entering her room because she
knew that her brother, Rossel was around. However, accused-appellant sat on the side of her bed, placed
himself on top of her, held her hands and legs and fondled her breasts. She struggled to extricate
herself. Accused-appellant removed her panty and touched her sex organ.Accused-appellant inserted his
finger into her vagina, extricated it and then inserted his penis into her vagina. Accused-appellant
ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia after drinking
water from the refrigerator, and peeped through the door. He saw accused-appellant on top of
Analia. Accused-appellant saw Rossel and dismounted. Accused-appellant berated Rossel and ordered him to
go to his room and sleep. Rossel did. Accused-appellant then left the room. Analia likewise left the room, went
out of the house and stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not
divulge to her mother what accused-appellant had just done to her.
 On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the
house watching television. Analia tended the video shop. However, accused-appellant told Analia to go to the
sala. She refused, as nobody would tend the video shop. This infuriated accused-appellant who threatened to
slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose
returned, a heated argument ensued between accused-appellant and Analia. Rose sided with her paramour
and hit Analia.This prompted Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the
house on board the motorcycle driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila,
to retrieve some tapes which had not yet been returned. When Rose inquired from her daughter what she
meant by her statement, ayoko na, ayoko na, she told her mother that accused-appellant had been touching
the sensitive parts of her body and that he had been on top of her. Rose was shocked and incensed. The two
proceeded to Kagawad Danilo Santos to have accused-appellant placed under arrest. On November 10, 1998,
the two proceeded to the Western Police District where Analia gave her Affidavit-Complaint to PO1 Carmelita
Nocum in the presence of SPO2 Fe H. Avindante. She related to the police investigator that accused-appellant
had touched her breasts and arms in August, 1998, September 15, 1998, October 22, 1998 and on November
5, 1998, at 3:00 p.m. Analia then submitted herself to genitalia examination by Dr. Armie Umil, a medico-legal
officer of the NBI. The medico-legal officer interviewed Analia, told him that she was raped in May, 1997 at
3:00 p.m. and November 5, 1998 at 3:00 p.m.[8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which contained her findings
during her examination on Analia, thus:

xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical, firm. ----,
brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.

No extragenital physical injuries noted.

GENITAL EXAMINATION:

Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular mucosa,
pinkish. Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities,
prominent.

CONCLUSIONS:

1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.

2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an average-sized
adult Filipino male organ in full erection without producing any genital injury.[9]

Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang sinabi ko. When
Rose inquired from her daughter what she meant by her statement, Analia revealed to her mother that
accused-appellant had sexually abused her. On December 15, 1998, Analia executed a Dagdag na Salaysay
ng Paghahabla and charged accused-appellant with rape.[10]

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose
agreed in 1994 to live together as husband and wife. He was then a utility worker with the Navotas Branch of
the Philippine Banking Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at
Rizal Avenue, Manila.
 Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they
were his own children. He took care of them, as in fact he cooked and prepared their food before they arrived
home from school. At times, he ironed their school uniforms and bathed them, except Analia who was already
big. Analia was hard-headed because she disobeyed him whenever he ordered her to do some
errands. Because of Analias misbehavior, accused-appellant and Rose oftentimes quarreled. Rose even
demanded that accused-appellant leave their house. Another irritant in his and Roses lives were the frequent
visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay
of P9,000.00 which he used to put up the VHS Rental and Karaoke from which he earned a monthly income
ofP25,000.00. While living together, accused-appellant and Rose acquired two colored television sets, two
VHS Hi-fi recorders, one VHS player, one washing machine, one scooter motor, two VHS rewinders, one sala
set, one compact disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and
used them to fabricate charges against him because Rose wanted to manage their business and take control
of all the properties they acquired during their coverture. Also, Rose was so exasperated because he had no
job.

IV. The Verdict

On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond
reasonable doubt of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of
the Revised Penal Code, and meted on him the death penalty for each count. The dispositive portion of the
decision reads:

From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond reasonable
doubt of the crime charged against him in these four (4) cases, convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.

SO ORDERED.[11]

V. Assigned Errors of the Trial Court

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

VI. Findings of the Court

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

SEC. 2. Form and contents of judgment.The judgment must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the judgment is based.

If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts committed by
the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any; (b) the
participation of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the
fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be
recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate
action has been reserved or waived.[14]

The purpose of the provision is to inform the parties and the person reading the decision on how it was
reached by the court after consideration of the evidence of the parties and the relevant facts, of the opinion it
has formed on the issues, and of the applicable laws. The parties must be assured from a reading of the
decision of the trial court that they were accorded their rights to be heard by an impartial and responsible
judge.[15] More substantial reasons for the requirement are:

For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he may elevate
what he may consider its errors for review by a higher tribunal. For another, the decision if well-presented and reasoned,
may convince the losing party of its merits and persuade it to accept the verdict in good grace instead of prolonging the
litigation with a useless appeal. A third reason is that decisions with a full exposition of the facts and the law on which
they are based, especially those coming from the Supreme Court, will constitute a valuable body of case law that can
serve as useful references and even as precedents in the resolution of future controversies.[16]

The trial court is mandated to set out in its decision the facts which had been proved and its conclusions
culled therefrom, as well as its resolution on the issues and the factual and legal basis for its resolution.[17] Trial
courts should not merely reproduce the respective testimonies of witnesses of both parties and come out with
its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on
Criminal Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-
appellant on direct and cross examinations and merely made referral to the documentary evidence of the
parties then concluded that, on the basis of the evidence of the prosecution, accused-appellant is guilty of four
(4) counts of rape and sentenced him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their evidence,
the issues raised by the parties and its resolution of the factual and legal issues, as well as the legal and
factual bases for convicting accused-appellant of each of the crimes charged. The trial court rendered
judgment against accused-appellant with the curt declaration in the decretal portion of its decision that it did so
based on the evidence of the prosecution. The trial court swallowed hook, line and sinker the evidence of the
prosecution. It failed to explain in its decision why it believed and gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court, one is apt to conclude that the trial court ignored the
evidence of accused-appellant. The trial court did not even bother specifying the factual and legal bases for its
imposition of the supreme penalty of death on accused-appellant for each count of rape. The trial court merely
cited seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The decision of the trial court is a good
example of what a decision, envisaged in the Constitution and the Revised Rules of Criminal Procedure,
should not be.
The Court would normally remand the case to the trial court because of the infirmity of the decision of the
trial court, for compliance with the constitutional provision. However, to avert further delay in the disposition of
the cases, the Court decided to resolve the cases on their merits considering that all the records as well as the
evidence adduced during the trial had been elevated to the Court.[18] The parties filed their respective briefs
articulating their respective stances on the factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is
easy but to disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and
only two persons are usually involved in the crime of rape, the testimony of the complainant should be
scrutinized with great caution; (3) the evidence for the prosecution must stand or fall on its own merits and not
be allowed to draw strength from the weakness of the evidence of the defense.[19] By the very nature of the
crime of rape, conviction or acquittal depends almost entirely on the credibility of the complainants testimony
because of the fact that usually only the participants can testify as to its occurrence. However, if the accused
raises a sufficient doubt as to any material element of the crime, and the prosecution is unable to overcome it
with its evidence, the prosecution has failed to discharge its burden of proving the guilt of the accused beyond
cavil of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:

Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about October 22,
1998 and on or about September 15, 1998)

Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he
raped the private complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical
findings of Dr. Armie Umil show that the hymen of the private complainant was intact and its orifice so small as
to preclude complete penetration by an average size adult Filipino male organ in full erection without producing
any genital injury. The physical evidence belies private complainants claim of having been deflowered by
accused-appellant on four different occasions. The Office of the Solicitor General, for its part, contends that the
prosecution through the private complainant proved the guilt of accused-appellant for the crime charged on
both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified that
since 1996, when she was only eleven years old, until 1998, for two times a week, accused-appellant used to
place himself on top of her and despite her tenacious resistance, touched her arms, legs and sex organ and
inserted his finger and penis into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill
her if she divulged to anyone what he did to her.[20] Although private complainant did not testify that she was
raped on September 15, 1998 and October 22, 1998, nevertheless accused-appellant may be convicted for
two counts of rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been committed
on or about September 15, 1998 and on or about October 22, 1998. The words on or about envisage a period,
months or even two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove
that the crime charged was committed on or about September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,[21] this Court affirmed the conviction of accused-appellant of five (5) counts of rape,
four of which were committed in December 1992 (two counts) and one each in March and April, 1993 and in
November, 1995 and one count of acts of lasciviousness committed in December 1992, on a criminal
complaint for multiple rape, viz:

That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality of Dasmarias,
Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs,
taking advantage of his superior strength over the person of his own twelve (12) year old daughter, and by means of force,
violence and intimidation, did, then and there, willfully, unlawfully and feloniously, have repeated carnal knowledge of
Myra M. Gianan, against her will and consent, to her damage and prejudice.[22]

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

Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from the date
(November 1995) alleged in the information, so that the latter could no longer be considered as being as near to the actual
date at which the offense was committed as provided under Rule 110, 11.

This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten counts of rape based on an
information which alleged that the accused committed multiple rape from November 1990 up to July 21, 1994, a time
difference of almost four years which is longer than that involved in the case at bar. In any case, as earlier stated, accused-
appellants failure to raise a timely objection based on this ground constitutes a waiver of his right to object.[23]

Moreover, when the private complainant testified on how accused-appellant defiled her two times a week
from 1996 until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously
cross-examined the private complainant on her testimony on direct examination. The presentation by the
prosecution, without objection on the part of accused-appellant, of evidence of rape committed two times a
week from 1996 until 1998 (which includes September 15, 1998 and October 22, 1998) to prove the charges
lodged against him constituted a waiver by accused-appellant of his right to object to any perceived infirmity in,
and in the amendment of, the aforesaid Informations to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having
been repeatedly sexually abused by accused-appellant. The private complainant being of tender age, it is
possible that the penetration of the male organ went only as deep as her labia. Whether or not the hymen of
private complainant was still intact has no substantial bearing on accused-appellants commission of the
crime.[24] Even the slightest penetration of the labia by the male organ or the mere entry of the penis into the
aperture constitutes consummated rape. It is sufficient that there be entrance of the male organ within
the labia of the pudendum.[25] In People vs. Baculi, cited in People vs. Gabayron,[26] we held that there could be
a finding of rape even if despite repeated intercourse over a period of four years, the complainant still retained
an intact hymen without injury. In these cases, the private complainant testified that the penis of accused-
appellant gained entry into her vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong nya yong ano nya and
where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
 A I felt pain, sir, and I also felt that there was a sticky substance that was coming out,
sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified
rape. The evidence on record shows that accused-appellant is the common-law husband of Rose, the mother
of private complainant. The private complainant, as of October 1998, was still 13 years old, and under Article
335 as amended by Republic Act 7659, the minority of the private complainant, concurring with the fact that
accused-appellant is the common-law husband of the victims mother, is a special qualifying circumstance
warranting the imposition of the death penalty.[28] However, said circumstance was not alleged in the
Informations as required by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which was given
retroactive effect by this Court because it is favorable to the accused.[29] Hence, even if the prosecution proved
the special qualifying circumstance of minority of private complainant and relationship, the accused-appellant
being the common-law husband of her mother, accused-appellant is guilty only of simple rape. Under the given
law, the penalty for simple rape is reclusion perpetua. Conformably with current jurisprudence, accused-
appellant is liable to private complainant for civil indemnity in the amount of P50,000.00 and moral damages in
the amount of P50,000.00 for each count of rape, or a total of P200,000.00.

Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or about August 1998 and
November 5, 1998)

Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective because
the date of the offense on or about August 1998 alleged therein is too indefinite, in violation of Rule 110,
Section 11 of the Revised Rules on Criminal Procedure which reads:

Sec. 11. Date of commission of the offense.It is not necessary to state in the complaint or information the precise date the
offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been
committed on a date as near as possible to the actual date of its commission. (11a)[30]

Accused-appellant further asserts that the prosecution failed to prove that he raped private complainant in
August 1998. Hence, he argues, he should be acquitted of said charge. The Office of the Solicitor General, for
its part, argued that the date on or about August 1998 is sufficiently definite. After all, the date of the
commission of the crime of rape is not an essential element of the crime. The prosecution adduced conclusive
proof that accused-appellant raped private complainant on or about August 1998, as gleaned from her
testimony during the trial.

The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission of the crime of
rape is not an essential element of the crime. Failure to specify the exact date when the rape was committed does not
render the Information defective. The reason for this is that the gravamen of the crime of rape is carnal knowledge of the
private complainant under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as
amended. Significantly, accused-appellant did not even bother to file a motion for a bill of particulars under Rule 116,
Section 9 of the Revised Rules on Criminal Procedure before he was arraigned. Indeed, accused-appellant was duly
arraigned under the Information and entered a plea of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the prosecution had rested its case. It was only on appeal
to this Court that accused-appellant questioned for the first time the sufficiency of the Information filed against him. It is
now too late in the day for him to do so. Moreover, in People vs. Salalima,[31] this Court held that:

Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on
its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of the
Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date when the
offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were
committed before and until October 15, 1994, sometime in the year 1991 and the days thereafter, sometime in November
1995 and some occasions prior and/or subsequent thereto and on or about and sometime in the year 1988 constitute
sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates when the sexual assaults took place, we
believe that the allegations therein that the acts were committed sometime during the month of March 1996 or thereabout,
sometime during the month of April 1996 or thereabout, sometime during the month of May 1996 or
thereabout substantially apprised appellant of the crimes he was charged with since all the elements of rape were stated in
the informations. As such, appellant cannot complain that he was deprived of the right to be informed of the nature of the
cases filed against him. Accordingly, appellants assertion that he was deprived of the opportunity to prepare for his
defense has no leg to stand on.

The prosecution proved through the testimony of private complainant that accused-appellant raped her
two times a week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is guilty
only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is not
criminally liable of rape. We agree with accused-appellant. The collective testimony of private complainant and
her younger brother Rossel was that on November 5, 1998, accused-appellant who was wearing a pair of short
pants but naked from waist up, entered the bedroom of private complainant, went on top of her, held her hands,
removed her panty, mashed her breasts and touched her sex organ. However, accused-appellant saw Rossel
peeping through the door and dismounted. He berated Rossel for peeping and ordered him to go back to his
room and to sleep. Accused-appellant then left the room of the private complainant. The testimony of private
complainant on direct examination reads:
Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while he was on top of
you?
A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - -
Court:
Same ruling. Let the complainant continue considering that she is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - -
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his body, did he touch
your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual thing that you
experienced from the hands of the accused was this that last time, the one you narrated in
November 1998?
A Yes, sir.[32]
On cross-examination, the private complainant testified, thus:
Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one who entered was
your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but suddenly I felt
that somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your legs, is that
what you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - -
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
 So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was struggling to
free myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand was holding your
leg, is that what you are trying to tell us?
A No, sir, its not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to extricate
yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - -
Court:
You did not shout during that time?
A No, your honor.[33]
Rossel, the nine-year old brother of the private complainant corroborated in part his sisters testimony. He
testified on direct examination, thus:
Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 oclock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at that date, time
and place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you stay the whole
afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he laid on top of
her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did you see this before
or after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to the other room
and slept, sir.[34]
Rossel testified on cross-examination, thus:
Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sisters room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of your sister when you said
the accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you were taking a
glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what you are trying to
tell us?
A Yes, sir.
Q And where was the - - - and the accused saw you when he was removing the panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q So---you said the accused was touching your sister. What part of her body was touched by the
accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sisters body was the accused touching with his right hand? Your sisters
body was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
 Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand ---
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister ---
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that what you are
telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.[35]
In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into
the aperture or within the pudendum of the vagina of private complainant. Hence, accused-appellant is not
criminally liable for consummated rape.[36]
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts of
lasciviousness defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the
said Code, as amended in relation to the last paragraph of Article 6 of the Revised Penal Code. In light of the
evidence on record, we believe that accused-appellant is guilty of attempted rape and not of acts of
lasciviousness.
Article 336 of the Revised Penal Code reads:

Art. 336. Acts of Lasciviousness.Any person who shall commit any act of lasciviousness upon other persons of either sex,
under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.[37]

For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the
confluence of the following essential elements:
1. That the offender commits any act of lasciviousness or lewdness.
 2. That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age.[38]

Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has
relation to moral impurity; or that which is carried on a wanton manner.[39]
The last paragraph of Article 6 of the Revised Penal Code reads:

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform
all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.[40]

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

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.[41]

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance
of the perpetrator, will logically and necessarily ripen into a concrete offense.[42] The raison detre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts
of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared
intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said
to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime
itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one
can say with certainty what the intent of the accused is.[43] It is necessary that the overt act should have been
the ultimate step towards the consummation of the design. It is sufficient if it was the first or some subsequent
step in a direct movement towards the commission of the offense after the preparations are made.[44] The act
done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must
have a causal relation to the intended crime.[45] In the words of Viada, the overt acts must have an immediate
and necessary relation to the offense.[46]
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts which
consist of devising means or measures necessary for accomplishment of a desired object or end.[47] One
perpetrating preparatory acts is not guilty of an attempt to commit a felony. However, if the preparatory acts
constitute a consummated felony under the law, the malefactor is guilty of such consummated offense.[48] The
Supreme Court of Spain, in its decision of March 21, 1892, declared that for overt acts to constitute an
attempted offense, it is necessary that their objective be known and established or such that acts be of such
nature that they themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for designation of the offense.[49]
There is persuasive authority that in offenses not consummated as the material damage is wanting, the
nature of the action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the
nature of the acts executed (accion medio).[50] Hence, it is necessary that the acts of the accused must be such
that, by their nature, by the facts to which they are related, by circumstances of the persons performing the
same, and by the things connected therewith, that they are aimed at the consummation of the offense. This
Court emphasized in People vs. Lamahang[51] that:

The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to
produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to cause a particular injury.[52]

If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is
not guilty of an attempted felony.[53] The law does not punish him for his attempt to commit a felony.[54] The
rationale of the law, as explained by Viada:

La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa, despues
de haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el borde
del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un perdon que concede la Ley al
arrepentimiento voluntario.[55]

As aptly elaborated on by Wharton:

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

It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from
criminal liability for the intended crime but it does not exempt him from the crime committed by him before his
desistance.[57]
In light of the facts established by the prosecution, we believe that accused-appellant intended to have
carnal knowledge of private complainant. The overt acts of accused-appellant proven by the prosecution were
not mere preparatory acts. By the series of his overt acts, accused-appellant had commenced the execution of
rape which, if not for his spontaneous desistance, will ripen into the crime of rape. Although accused-appellant
desisted from performing all the acts of execution however his desistance was not spontaneous as he was
impelled to do so only because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant is
guilty only of attempted rape.[58] In a case of similar factual backdrop as this case, we held:

Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can only
be convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and kissing
his victim and lying on top of her. However, he failed to perform all the acts of execution which should produce the crime
of rape by reason of a cause other than his own spontaneous desistance, i.e., by the timely arrival of the victims
brother. Thus, his penis merely touched Mary Joys private organ. Accordingly, as the crime committed by the appellant is
attempted rape, the penalty to be imposed on him should be an indeterminate prison term of six (6) years of prision
correccional as minimum to twelve (12) years ofprision mayor as maximum.

The penalty for attempted rape is prision mayor which is two degrees lower than reclusion
perpetua.[59] Accused-appellant should be meted an indeterminate penalty the minimum of which should be
taken from prision correccional which has a range of from six months and one day to six years and the
maximum of which shall be taken from the medium period of prision mayor which has a range of from eight
years and one day to ten years, without any modifying circumstance. Accused-appellant is also liable to private
complainant for moral damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is
SET ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of
simple rape under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty
of reclusion perpetua. Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the
amounts of P50,000.00 by way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under
Article 335 of the Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby
meted an indeterminate penalty of from six years of prision correccional in its maximum period, as minimum to
ten years of prision mayor in its medium period, as maximum. Accused-appellant is hereby ordered to pay
private complainant Analia Orillosa the amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond
reasonable doubt of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended
and is hereby meted the penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to
pay to private complainant Analia Orillosa the amount of P50,000.00 by way of civil indemnity and the amount
of P50,000.00 by way of moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.
Bellosillo, J., on leave.

[1]
Penned by Judge Manuel T. Muro.
[2]
Accused-appellant was charged under the name Freedie Lizada.
[3]
Original records, pp. 1-4.
[4]
Id., at 73.
[5]
The prosecution presented four witnesses, namely, Analia Orillosa, Rose Orillosa, Rossel Orillosa & Dr. Armie Umil.
[6] Exhibit A.
[7] Exhibit 2.
[8] Exhibit C.
[9] Supra.

[10] Exhibit 2.
[11] Records, p. 147. (The name of accused-appellant is erroneously stated as Fredie Lizada.)
[12] Rollo, p. 51.
[13] Id., at 53.
[14]
Supra.
[15]
Francisco vs. Permskul, et al., 173 SCRA 327 (1989).
[16]
Vide Note 14.
[17]
Hernandez vs. Hon. Colayco, et al., 64 SCRA 480 (1975).
[18]
People vs. Bugarin, 273 SCRA 384 (1997).
[19]
People vs. Sta. Ana, 291 SCRA 188 (1998).
[20]
TSN, Orillosa, June 3, 1999, pp. 8-28.
[21] 340 SCRA 481 (2000).
[22]
Ibid., p. 489.
[23]
Ibid., p. 488.
[24]
People vs. Cabingas, et al., 329 SCRA 21 (2000).
[25]
People vs. Borja, 267 SCRA 370 (1997).
[26]
278 SCRA 78 (1997).
[27] TSN, Orillosa, June 3, 1999, pp. 11-12.
[28] People vs. Torio, 318 SCRA 345 (1999).
[29] People vs. Alcala, 307 SCRA 330 (1999).
[30] Id., supra.
[31] 363 SCRA 192 (2001).
[32] TSN, Orillosa, June 3, 1999, pp. 18-20.
[33] TSN, Orillosa, June 7, 1999, pp. 39-45.
[34] TSN, Orillosa, June 28, 1999, pp. 6-10.
[35]
TSN, Orillosa, June 28, 1999, pp. 13-20.
[36]
People vs. Campuhan, 329 SCRA 270 (2000).
[37]
Id., supra.
[38]
Id., supra.
[39]
People vs. Tayag, 329 SCRA 491 (2000).
[40]
Reyes, Revised Penal Code, 1981, Vol. I, p. 98, supra.
[41]
Id., supra, p. 98.
[42]
Id., supra, pp. 98-99.
[43]
People vs. Miller, 2 Cal. 2d., 527, 531-532, 42 P.2d. 308, 310, citing Wharton.
[44]
People vs. Gibson, 94 Cal. App. 2d. 468.
[45]
Wharton, Criminal Law, Vol. 1, 12 ed. 287.
[46]
Vide Note 32, p. 47.
[47]
Wharton, Criminal Law, idem, supra, p. 293.
[48]
Reyes, Revised Penal Code, supra, p. 97.
[49] People vs. Lamahang, 62 Phil. 703 (1935).
[50] 1 Groizard, p. 99, cited in People vs. M. Lamahang, 61 Phil. 703 (1935).
[51] See note 48.
[52] Ibid., p. 707.
[53] Spontaneous means proceeding from natural feeling or native tendency without external constraint; synonymous with impulsive,
automatic and mechanical. (Webster, Third New International Dictionary, p. 2204).
[54]
Reyes, idem, supra, p. 104.
[55] Aquino, Revised Penal Code, Vol. 1, 1987 ed.
[56] Wharton, Criminal Law, Vol. 1, pp. 307-308, supra.
[57] Reyes, Revised Penal Code, supra, p. 105.
[58] People vs. Alcoreza, G.R. No. 135452-53, October 5, 2001.
[59] Article 51, Revised Penal Code.

 
 EN BANC

[G. R. No. 149028-30. April 2, 2003]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO,
MARCIANO CABALLERO, JR., and ROBITO CABALLERO, accused.
ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.

DECISION
CALLEJO, SR., J.:

Before the Court on automatic review is the Decision[1] of the Regional Trial Court of San Carlos City,
Negros Occidental, Branch 57, convicting appellants Armando Caballero, Ricardo Caballero and Marciano
Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the
supreme penalty of death and ordering them to pay damages; and of frustrated murder in Criminal Case No.
RTC-1219 and imposing on them the penalty of reclusion perpetua.

The Antecedents

Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at
New Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound were Ricardo
Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside the
compound was the house of Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed
Caballero, were having a drinking spree in the house of their brother Ricardo in the Mondragon Compound. At
about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari store of Wilma
Broce which was across the Mondragon Compound. Eugene had dinner in the store while Arnold proceeded to
the house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was about 15 meters away from the
store of Wilma. Momentarily, Armando arrived in the store and asked Eugene in an angry tone: Gene mopalit
ka? (Gene, will you buy?).Eugene replied: What is this all about? We dont have any quarrel between
us. Armando left the store but stood by the gate of the barbed-wired fence of the Mondragon Compound. His
brothers Ricardo, Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When
Wilma told Eugene that she was closing the store already, he stood up and left the store on his way to
Susanas house. At that time, Myrna Bawin, who was standing by the window of their house saw her brother
Eugene going out of the store and proceeding to the house of Susana. She called out to him and advised him
to go home. Myrna then left the window to pacify her crying baby.
As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene
towards the compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando
and assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit Eugene with it. The
latter tried to parry the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed three
times. As Eugene was being assaulted, Myrna returned to the window of her house and saw the Caballero
brothers assaulting Eugene. She shouted for help for her hapless brother. Wilma, who witnessed the whole
incident, was shocked to immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the
protagonists. Arnold told the Caballero brothers: Bay, what is the trouble between you and Eugene? However,
Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith, Robito, Marciano, Jr.
and Armando ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold fled for his life and hid
under the house of a neighbor.
 For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by Robito
who stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for help: Tio,
help me because I am hit. The commotion stopped only upon the arrival of Teresito Mondragon who was able
to pacify the Caballero brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the
Planters Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds they
sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report
containing the following findings:

POST-MORTEM EXAMINATION

Name: Eugenio Tayactac, 22 years old, male, single

Address: New Sumakwel, San Carlos City, Neg. Occ.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

Place of Examination: San Carlos City Hospital

Date & Time of Incident: August 3, 1994 @ 8:30 P.M.

Date & Time Examined: August 3, 1994 @ 10:40 P.M.

Post-Mortem Findings:

= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L) auricle of the heart,
and the (L) pulmonary artery and the left middle lobe of the lungs;

= Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly;

= Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.

CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive Hemothorax (L)
and Hemopneumothorax (R).[2]

He testified that the stab wounds could have been caused by a sharp-edged single-bladed or double-
bladed instrument, or by three instruments.[3]
Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a postmortem
report containing the following findings:

POST-MORTEM EXAMINATION

Name: Leonilo Broce, 22 years old, male, married

Address: New Sumakwel, San Carlos City, Neg. Occ.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

Place of Examination: San Carlos City Hospital

Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.

Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.

Post-mortem findings:

= Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post. axillary line.

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.[4]

Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical certificate
stating that Arnold sustained the following injuries:

= Lacerated wound 2 cm. (R) forearm middle 3rd

= Incised wound 2 inches (L) forearm middle 3rd

= Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the 7th intercostal space,
penetrating thoracic cavity and abdominal cavity.

... [5]

On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been
caused by three different sharp-pointed instruments.[6] He further testified that Arnold would have died because
of the stab wound on his chest, were it not for the timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death
of Leonilo Broce. The Information, docketed as Criminal Case No. RTC 1217 reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one
another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident premeditation,
did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal
violence upon the person of one LEONILO BROCE, by striking the latter with the use of pieces of wood and stabbing
him, thereby inflicting upon said Leonilo Broce physical injury described as follows:

= Stabbed wound (R) chest penetrating thoracic cavity.

and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.

CONTRARY TO LAW.[7]

They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed
as Criminal Case No. RTC-1218, which reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one
another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident premeditation,
did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal
violence upon the person of one EUGENE TAYACTAC, by striking the latter with use of pieces of wood and stabbing
him thereby inflicting upon said Eugene Tayactac physical injuries which resulted to the death of the latter.

That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense.

CONTRARY TO LAW.[8]
 Another Information was filed against the Caballero brothers for frustrated murder for the injuries of Arnold
Barcuma. Docketed as Criminal Case No. RTC-1219, it reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one
another, armed with pieces of wood and hunting knives, with intent to kill, with treachery and evident premeditation, did,
then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of
one ARNOLD BARCUMA, by striking him with the use of pieces of wood and stabbing him, thereby inflicting upon the
latter physical injuries which would have resulted to the death of said Arnold Barcuma, thus performing all the acts of
execution, which would have produced the crime of Murder, as a consequence, but nevertheless did not produce it, by
reason of causes independent of the will of the accused that is, the timely medical assistance rendered to said Arnold
Barcuma.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.[9]

Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They
pleaded not guilty to all the charges. Robito Caballero remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that
Ricardo was employed as electrician in the Office of the City Engineer of San Carlos City. Armando was a
motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano, Jr. was a resident of
Don Juan Subdivision, San Carlos City and was employed with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to
the house of his brother Ricardo to help in the construction of the latters house and to take care of Ricardos
fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with his family and
Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the house of
Ricardo. Marciano, Jr. allegedly was mauled by a group of men and sustained an abrasion, a contusion and
swelling of the left side of his face. Ricardo and Armando brought their brother Marciano, Jr. to the hospital for
treatment. On August 4, 1994, Marciano, Jr. was treated for:

= Linear abrasion (L) scapula region;

= Contusion (R) lower lip lateral side;

= Swelling left face.

No. of days of healing: 5-7 days barring complication.[10]

Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied
having any altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma,
Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused, now
appellants guilty beyond reasonable doubt as principals of the crimes charged, the decretal portion of which
reads:

WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano Caballero, Jr.,
alias Jun, having been found GUILTY beyond reasonable doubt of the offenses charged them as principals, are hereby
sentenced to suffer:

1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance present, with
the attendant aggravating circumstances of treachery and abuse of superior strength, the maximum penalty of death and to
pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating
circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the
maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of P75,000.00 as indemnity; and

3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the person of
Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance present, an imprisonment of
twelve (12) years, as minimum, to seventeen (17) years, four (4) months and one (1) day, with no award as to damages, no
evidence having been introduced to establish, the same; and

4. To pay the costs in all three (3) cases.

SO ORDERED.[11]

In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and
cause injuries to Arnold. While the trial court stated that it was only appellant Armando who stabbed Eugene,
and only the accused Robito who stabbed Leonilo, however, it concluded that all of them were equally liable for
the deaths of Leonilo and Eugene and for the injuries of Arnold.
In their Brief, the accused, now appellants assail the decision of the trial court contending that:
I

THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-
1219 DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF

TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED ACCUSED-
APPELLANTS KILLED THE VICTIMS.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS
ON THE ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS.[12]

The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt for
the deaths of Eugene and Leonilo and for the injuries sustained by Arnold. They assert that the trial court
committed reversible error in rejecting their defenses of denial and alibi. They claim that at the time of the
incident they were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence,
they are criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article 8 of the
Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and
decide to commit it. Conspiracy is always predominantly mental in composition because it consists primarily of
a meeting of minds and intent.[13] Conspiracy must be proved with the same quantum of evidence as the crime
itself, that is, by proof beyond reasonable doubt.[14] However, direct proof is not required. Conspiracy may be
proved by circumstantial evidence.Conspiracy may be proved through the collective acts of the accused,
before, during and after the commission of a felony, all the accused aiming at the same object, one performing
one part and another performing another for the attainment of the same objective, their acts though apparently
independent were in fact concerted and cooperative, indicating closeness of personal association, concerted
action and concurrence of sentiments.[15] 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.[16] Direct proof of a person in
agreement to commit a crime is not necessary. It is enough that at the time of the commission of a crime, all
the malefactors had the same purpose and were united in their execution.[17] Once established, all the
conspirators are criminally liable as co-principals regardless of the degree of participation of each of them for in
contemplation of the law, the act of one is the act of all.[18]
Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and
presumptions.[19] Mere knowledge, acquiescence to or approval of the act without cooperation or agreement to
cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the act
with a view to the furtherance of the common objective and purpose.[20] Moreover, one is not criminally liable
for his act done outside the contemplation of the conspirators. Co-conspirators are criminally liable only for acts
done pursuant to the conspiring on how and what are the necessary and logic consequence of the intended
crime.[21]
In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to
buy something from the store, Eugene was peeved and remonstrated that he and Armando had no quarrel
between them.Appellant Armando was likewise irked at the reaction of Eugene because from the store,
appellant Armando stationed himself by the gate of the Mondragon Compound near the sari-sari store of
Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at the
gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene passed by the gate to the
compound, appellant Armando pulled Eugene to the gate but when the latter resisted, all the appellants
ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit Eugene with
it. Eugene was stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed to
the situs criminis to pacify the appellants and accused Robito, appellant Ricardo stabbed him on the left side of
his body. The other appellants and accused Robito joined appellant Ricardo and ganged up on Arnold. They
stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant Ricardo
intervened and forthwith, all the appellants, including accused Robito returned to the Mondragon Compound.
Patently, all the appellants by their simultaneous collective acts before and after the commission of the crimes
were united in one common objective, to kill Eugene, and cause injuries to Arnold for trying to intervene and
prevent bloodshed. Hence, all the appellants are criminally liable for the death of Eugene and for the injuries of
Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on Arnold. The act of
one is the act of the others.
However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The
prosecution failed to adduce evidence that the appellants and the accused Robito conspired to kill Leonilo. The
appellants did not actually see Leonilo rushing out from his house to the situs criminis. They had no
foreknowledge that the accused Robito would stab Leonilo. There was no evidence presented by the
prosecution to prove that all the appellants assisted the accused Robito in killing Leonilo. It must be recalled
that Leonilo rushed out of his house when he saw the commotion, with the intention of aiding the victim or
pacifying the protagonists. He was, however, stopped by accused Robito who suddenly stabbed him on the
chest. Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito stabbed
Leonilo:
Q After that, what happened next?
A Leonilo Broce came out of his house.
Q Where is the house of Leonilo Broce?
A Still located at Sumakwel.
Q In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by the
four?
A Yes.
Q What happened after that?
A When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to
approach them but he was not able to approach them because he was met by Robit Bebot
Caballero and stabbed by Robito Caballero.
Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?
 A Yes. He immediately ran back and said: Tio, help me because I am hit.
INTERPRETERS (observation)
Witness demonstrating by holding her left armpit.
Q Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers?
A Not (sic).
Q Now what happened to Eugene Tayaktak?
A He appeared very weak and he was staggering.
Q Do you know where Eugene Tayaktak now?
A Already dead.
Q What happened to Leonilo Broce, where is he now?
A The two of them were (sic) already dead.
Q Now, when did the trouble stop if it stopped?
A It stopped when Dodong Mondragon arrived.
Q What did the accused do after the trouble was stopped?
A They went inside the compound of his (sic) father.
Q What happened next?
A Nothing happened. Both of them were brought to the hospital.[22]
In sum, the trial court committed reversible error in convicting the appellants of murder for the death of
Leonilo. As this Court held in People v. Flora:[23]

However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor
Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the
contemplation of theconspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569, 570
(1967), we held:

... And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts
done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the
intended crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was
not even going to the aid of his father Rafael but was fleeing away when shot.

To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no
liability for the death of Emerita Roma nor the injuries of Flor Espinas caused by his co-accused Hermogenes Flora.

Crimes Committed by Appellants

In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder,
qualified by treachery. In order that treachery may be considered as a qualifying circumstance, the prosecution
is burdened to prove that:

.... (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to
retaliate; and (2) the means of execution was deliberately or consciously adopted.[24]

Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is
a swift and unexpected attack on the unarmed victim.[25]
 In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his
way to his girlfriend Susanas house. On the other hand, appellant Armando was armed with a wooden pole
while appellant Ricardo and accused Robito were armed with knives. The attack on the hapless Eugene was
swift and unannounced. Undeniably, the appellants killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation
to Article 6, first paragraph of the Revised Penal Code which reads:

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

The essential elements of a frustrated felony are as follows:

Elements:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the perpetrator.[26]
In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court, distinguished
an attempted from frustrated felony. He said that to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he
has performed all the acts which should produce the crime as a consequence, which act it is his intention to
perform.
The subjective phase in the commission of a crime is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and the last act performed by the offender
which, with prior acts, should result in the consummated crime. Thereafter, the phase is objective.
In case of an attempted crime, the offender never passes the subjective phase in the commission of the
crime. The offender does not arrive at the point of performing all of the acts of execution which should produce
the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
On the other hand, a crime is frustrated when the offender has performed all the acts of execution which
should result in the consummation of the crime. The offender has passed the subjective phase in the
commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing
through the subjective phase. He did all that is necessary to consummate the crime. However, the crime is not
consummated by reason of the intervention of causes independent of the will of the offender. In homicide
cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is
mortal and could cause the death of the victim barring medical intervention or attendance.[28]
If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted
homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be
proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime;
(c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e)
words uttered by the offender at the time the injuries are inflicted by him on the victim.
In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito
used knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab wound sustained
by Arnold on the left side of his body was mortal and could have caused his death were it not for the timely and
effective medical intervention:
Q And how about the size and the depth of the wounds and how big is each wound and how deep.
 A The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2 inches in the left, penetrating
the chest near the thorax along the lateral line.
Q So, aside from the 3rd wound there are wounds which are not really very serious?
A As I said before, the most serious is the 3rd wound.
Q So even without the other wounds the 3rd wound - - it could be the cause of the death of the victim?
A Yes, Sir.[29]
It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all the
acts of execution but the crime was not consummated because of the timely medical intervention.
Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was swift and
sudden. He had no means and there was no time for him to defend himself. In sum, the appellants are guilty of
frustrated murder.
The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot
prevail over Wilmas and Arnolds positive and straightforward testimonies that the appellants killed Eugene and
stabbed Arnold.Moreover, Wilma and Arnold had no motive to falsely implicate the appellants for the said
crimes; hence, their testimony must be accorded full probative weight.[30]
Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is easy to
fabricate and difficult to disprove. To merit approbation, the appellants were burdened to prove with clear and
convincing evidence that at the time the crimes were committed, they were in a place other than the situs of
the crimes such that it was physically impossible for them to have committed said crimes.[31] The appellants
dismally failed in this respect. They testified that they were at the house of appellant Ricardo, which was
conveniently near the place where Eugene was killed and Arnold was assaulted. Moreover, the records show
that Marciano, Jr. was treated for his superficial injuries on August 4, 1996, a day after the incident. This belies
the claim of appellants Ricardo and Armando that they were allegedly in the hospital at the time of the incident.

Penalties Imposable on Appellants

The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding that
treachery and abuse of superior strength were attendant in the killing of Eugene. The Solicitor General does
not agree with the trial court and contends that abuse of superior strength was absorbed by treachery; hence,
should not be considered as a separate aggravating circumstance in the imposition of the penalty on the
appellants. The Court agrees with the Solicitor General. Abuse of superior strength, concurring with treachery
is absorbed by treachery.[32]
The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act 7659,
is reclusion perpetua to death. Since aside from the qualified circumstance of treachery, no other modifying
circumstance was attendant in the commission of the crime, the proper penalty for the crime is reclusion
perpetua conformably with Article 63 of the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the
indeterminate penalty of from 12 years of reclusion temporal as minimum, to 17 years, 4 months and 1 day
of reclusion temporal as maximum, imposed on the appellants is not correct. The Court agrees with the
Solicitor General. The penalty for frustrated murder is one degree lower than reclusion perpetua to death,
which is reclusion temporal.[33] The latter penalty has a range of 12 years and 1 day to 20 years. The maximum
of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime taking into
account any modifying circumstances in the commission of the crime. The minimum of the indeterminate
penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion
temporal. Since there is no modifying circumstance in the commission of frustrated murder, the appellants
should be meted an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its
medium period as minimum to seventeen (17) years and four (4) months of reclusion temporal in its medium
period, as maximum.
 Civil Liabilities of Appellants

The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of the
victim Eugene Tayactac, the amount of P75,000 by way of indemnity. The trial court did not award moral
damages to said heirs. This is erroneous. Since the penalty imposed on the appellants is reclusion perpetua,
the civil indemnity should be only P50,000. The heirs of the victim should also be awarded the amount
of P50,000 as moral damages.[34]
In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold Barcuma
on its finding that the prosecution failed to adduce any evidence to prove said damages. The Court disagrees
with the trial court. The victim Arnold Barcuma himself testified on his injuries.[35] He is entitled to moral
damages in the amount of P25,000.[36] Having suffered injuries and undergone medical treatment he is, as well
entitled to actual damages, which in the absence of evidence would, nevertheless, entitle him to an award of
temperate or moderate damages, herein fixed at P10,000.

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros
Occidental), Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the following
MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for
failure of the prosecution to prove their guilt beyond reasonable doubt, REVERSES the judgment
of the trial court and ACQUITS them of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of
murder under Article 248 of the Revised Penal Code, qualified by treachery, and are sentenced to
suffer the penalty of reclusion perpetua and ordered to pay in solidum the heirs of the victim
Eugene Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of
frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal
Code and are hereby sentenced to suffer an indeterminate penalty of from nine (9) years and four
(4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal in its medium period, as maximum. The appellants are hereby
ordered to pay in solidum to the victim Arnold Barcuma the amount of P25,000 as moral damages
and P10,000 as temperate or moderate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.

[1] Penned by Acting Presiding Judge Roberto S. Javellana.

[2]
Records, Criminal Case No. RTC-1218, p. 8.
[3]
TSN, December 5, 1996, pp. 5-6 & 20.
[4]
Records, Criminal Case No. RTC-1217, p. 8.
[5]
Id., at 202.
[6] TSN, December 8, 1996, p. 8.
[7]
Id., at 1-2.
[8]
Records, Criminal Case No. RTC-1218, p. 1.
[9]
Id., at 403-404.
[10]
Records, Criminal Case No. RTC 1217, p. 387.
[11]
Id., at 415-416.
[12] Rollo, pp. 68-69.
[13] People v. Medina, 292 SCRA 436 (1998).
[14] Fernandez v. People, 341 SCRA 277 (2000).
[15] See note 13, supra.
[16] People v. Ponce, 341 SCRA 352 (2000).
[17] People v. Sualog, 344 SCRA 690 (2000); People v. Buluran, 325 SCRA 476 (2000).
[18]
See note 16, supra.
[19]
People v. Campos, 202 SCRA 387 (1991).
[20]
People v. Bragaes, 203 SCRA 555, (1991).
[21]
People v. Flora, 334 SCRA 262 (2000).
[22] TSN, September 26, 1995, pp. 15-16.
[23] See note 21, supra.
[24] People v. Azugue, 268 SCRA 711 (1997).
[25] People v. Floro, 316 SCRA 304 (1999).
[26] REYES, REVISED PENAL CODE, 1998 ed., Vol. I, p. 99.
[27] 36 Phil. 209.
[28]
People v. Maguikay, 237 SCRA 587 (1994); People v. Sumalpong, et al., 284 SCRA 464 (1998).
[29]
TSN, December 5, 1996, pp. 9-10.
[30]
People v. Milliam, 324 SCRA 155 (2000).
[31]
People v. Blanco, 324 SCRA 280 (2000).
[32] People v. Riglos, 339 SCRA 562 (2000).
[33] REVISED PENAL CODE, Article 61, par. 2.
[34] People v. Marlon Delim, et al., G.R. No. 142773, January 28, 2003.
[35] TSN, July 19, 1995, pp. 22-25; TSN, March 11, 1997, pp. 7-9, 26-28.
[36] NEW CIVIL CODE, Article 2219, par. 1.
 

 
 THIRD DIVISION

[G.R. Nos. 141724-27. November 12, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO ORANDE y CHAVEZ, appellant.

DECISION
CORONA, J.:

This is an appeal from the decision[1] of the Regional Trial Court of Manila, Branch 18, in Criminal Case
Nos. 97-159184, 97-159185, 97-159186 and 97-159187, convicting appellant for two counts of simple rape,
one count of statutory rape and one count of frustrated rape, and sentencing him to suffer three counts
of reclusion perpetua for the simple and statutory rapes, and an indeterminate penalty of 8 years to 14 years
and 8 months of imprisonment for the frustrated rape.
Complainant Jessica Castro charged appellant with raping her four times between January 1994 and
November 1996. The informations filed against appellant by the City Prosecutor read:

In Criminal Case No. 97-159184 -

That on or about January 14, 1996, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had
carnal knowledge of the latter against her will.

CONTRARY TO LAW.

In Criminal Case No. 97-159185-

That on or about April 15, 1994, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening JESSICA CASTRO Y DE LA
CRUZ of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor,
under 12 years of age, against her will.

CONTRARY TO LAW.

In Criminal Case No. 97-159186 -

That on or about March 12, 1995, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening Jessica Castro y de la Cruz of death
should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under 12 years
of age, against her will.

CONTRARY TO LAW.

In Criminal Case No. 97-159187-

That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had
carnal knowledge of the latter against her will.

CONTRARY TO LAW.[2]
 Arraigned on September 5, 1997, appellant pleaded not guilty.[3] Thereafter, trial on the merits ensued.
However, the trial was subsequently postponed for eight months as Jessica was suffering from psychological
and emotional trauma from her horrifying ordeal.[4] The lower court ordered the suspension of the trial to enable
her to undergo psychological therapy at the Child Protection Unit of the Philippine General Hospital. Trial
resumed in November 1998 with the prosecution presenting Jessica as its first witness.
Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against her
mother, Girlie de la Cruz Castro, and the appellant for child abuse.
The evidence of the prosecution showed that appellant was the common law husband of Jessicas mother
Girlie. Appellant, a pedicab driver, started living with Girlie and her three children sometime in 1993 in a two-
storey house in Paco, Manila owned by Girlies mother. They occupied a room on the ground floor which
served as their bedroom, kitchen and living room. The adjacent room was occupied by Girlies brother and his
family while the room on the second floor was occupied by Girlies sister and her family.
Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco Market,
buying her stock from the Navotas fish market late at night and sometimes in the early hours of the morning.
The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994
when Girlie was at the fish market. Appellant was left in the house with Jessica, her siblings and appellants two
children with Girlie. Jessica was then watching television while her brothers and sisters were sleeping beside
her. Appellant grabbed Jessicas right hand and lasciviously jabbed her palm with his finger. He ordered her to
undress which she obeyed out of fear as appellant was armed with a knife. Appellant then removed his pants,
placed himself on top of complainant and succeeded in partially penetrating her. Jessica felt pain in her vagina
and saw it smeared with blood and semen. She tried to leave the room but appellant locked the door and
threatened to kill her if she told her mother what happened. Jessica was then only nine years and four months
old, having been born on December 19, 1983.[5]
The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around 11:00
a.m. when Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and her siblings
were left in the house watching television. Soon after, appellant arrived and sent the children, except Jessica,
to play outside. Left alone with Jessica, appellant removed his clothes, pulled out a balisong and ordered
Jessica to undress. He then held her by the shoulder and made her lie down. Then he mounted her. Appellant
reached his orgasm shortly after penetrating her slightly. He stood up with semen still dripping from his penis.
Apparently still not satisfied, he knelt down, kissed and fingered Jessicas vagina, then mashed her breasts. He
only stopped what he was doing when someone knocked at the door. Appellant and Jessica hurriedly put on
their clothes and, as appellant opened the door, Jessica went to the bathroom to wash herself.
The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996, when Jessica was
12 years and 6 months old. She arrived from school at around 11:00 a.m. While she was changing her clothes,
appellant ordered Jessicas brother and sister to visit their mother at the Paco Market and sent his children to
play outside the house. When appellant and Jessica were alone, he removed his pants, got his knife and
ordered her to undress. Since she was afraid, Jessica was forced to remove her clothes. Appellant then told
her they would do what they did before, pulled her towards him and made her lie down on the floor. While
holding the knife, he kissed and fingered her vagina, then mashed her breasts. Thereafter, he placed himself
on top of her, partially penetrated her until he ejaculated. When Jessicas brother and sister arrived, appellant
hurriedly put on his clothes. Jessica did the same. She then went to the bathroom to wash herself and change
her bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at
around 11:00 p.m. Girlie was again in the public market while Jessica was at home with her siblings who were
all asleep. Appellant told Jessica that they would again do what they did before but she refused, saying that
she might get pregnant. Appellant brandished his balisong and threatened to kill her. He then covered himself
and Jessica with a blanket, removed his pants and her shorts, and placed himself on top of her. His penis
slightly penetrated her vagina. He mashed her breasts, inserted his finger into her vagina and kissed it. Jessica
pushed him away and told him she wanted to sleep. Then she put on her shorts. Appellant also put on his
pants and told Jessica not to tell her mother what he did to her. He assured her that she would not get
pregnant because she was not yet menstruating.
 Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual treatment of
Jessica by appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant had raped her several
times. Mrs.Mojica called up Jessicas aunt, Mrs. Antonina de la Cruz, and narrated to her what Jessica had
confessed. Mrs. De la Cruz then accompanied Jessica to the police station to file a complaint and to the
Philippine General Hospital (PGH), Child Protection Unit, to be examined. Dr. Bernadette J. Madrid, Director of
the Child Protection Unit, examined Jessica and the findings revealed the following:
Genital Examination:
Hymen: Estrogenized,
Attenuated from 1 oclock position to 4 o clock position
and from 6 o clock to 12 o clock position
Notch at 5 oclock
Healed hymenal tear at the 6 o clock position
Anus: Normal rectal tone, no pigmentation, no scars, normal rugae[6]
For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified that,
during the alleged second rape incident, he was driving his pedicab. His live-in partner Girlie testified that,
during the purported first and second incidents of rape, appellant was with her to buy fish in Navotas and sell
them in Paco market. Appellant argued that since Jessica disapproved of his relationship with her mother, she
had the motive to falsely accuse him of raping her. Further, he pointed out the improbability of the alleged first
and fourth incidents of rape inasmuch as the make-up of the room made it impossible for Jessicas siblings not
to wake up during the commission of the crime. Appellant further contended that Jessicas failure to cry out for
help, knowing that her mothers relatives were in the same house, made her story of rape unbelievable.
The trial court gave credence to the testimony of Jessica and convicted the appellant:

WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y Chavez is convicted of simple rape under
Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory
penalties provided by law.

In Criminal Case No. 97-159185, the accused is also convicted of simple rape under Article 335 of the Revised Penal
Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law.

In Criminal Case No. 97-159186, the accused is likewise convicted of statutory rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law.

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code
and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum to 14 years and 8 months of
reclusion temporal as maximum, and to pay the costs.

On the civil liability of the accused in the four cases, he is ordered to pay the victim, Jessica Castro, moral, nominal and
exemplary damages in the respective sums of P400,000.00, P200,000.00 and P100,000.00.

SO ORDERED.[7]

In this appeal, appellant assigns the following errors:

I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF ONE COUNT OF STATUTORY RAPE, ONE COUNT OF
FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE.
II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF
FRUSTRATED RAPE DESPITE THE FACT THAT UNDER PREVAILING JURISPRUDENCE
THERE IS NO SUCH CRIME.[8]
The Office of the Solicitor General argues that appellants convictions should be upheld as the prosecution
was able to prove his guilt beyond reasonable doubt.
 The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond
reasonable doubt appellants guilt for two counts of statutory rape and two counts of simple rape, there being
no such crime as frustrated rape in this jurisdiction.
After a thorough review of the records, we find no reason to deviate from the well-established rule that the
credibility of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe
them firsthand and to note their demeanor, conduct and attitude.[9] In the present case, the trial court found
Jessicas testimony convincing, logical and credible. Moreover, the court a quo:

xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she suffered
whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone through, and her ... desire for
justice and the punishment of her defiler. She was continually in tears while testifying and the proceeding was interrupted
several times to calm her down.[10]

No young woman would allow an examination of her private part and subject herself to the humiliation and
rigor of a public trial if the accusations were not true, or if her motive were other than a fervent desire to seek
justice.[11]
We do not subscribe to appellants theory that the filing of the rape charges was motivated by Jessicas
dislike for him. To charge appellant with rape for the sole purpose of exacting revenge, as appellant implies in
his brief, takes a certain kind of psychiatric depravity which this Court does not see in Jessica. The fact that
Jessica had to undergo psychological treatment[12] after her first testimony in February 1998 belies appellants
defense. The need for such counseling came about after the defilement she suffered in the hands of
appellant. In fact, it was the incidents of rape that caused her psychological and emotional imbalance which
required therapy at the Child Protection Unit of the Philippine General Hospital.
The alleged inconsistencies and improbabilities in Jessicas testimony did not discredit her nor reveal any
fabrication. Inconsistencies regarding minor details were attributable to the fact that she was recalling details of
incidents that happened three years before, not to mention the fact that these details pertained to something
she had very little knowledge of, being then only nine years and three months old when the first rape was
committed. We have consistently ruled that errorless recollection of a harrowing experience cannot be
expected of a witness (a very young one at that) specially when she is recounting details of an occurrence so
humiliating, so painful and, in this case, so alien as rape.[13]
Appellant makes much of the fact that two incidents of rape happened inside the room where the other
children were sleeping. This Court has repeatedly held that rape can be committed in the same room where
other members of the family are also sleeping, in a house where there are other occupants or even in places
which to many might appear unlikely and high-risk venues for its commission.[14]
Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical
proximity of her relatives, or to report to them what happened, did not at all make her testimony improbable
inasmuch as it is not uncommon for a young girl of tender age to be easily intimidated into silence and conceal
for sometime the violation of her honor, even by the mildest threat to her life.[15] Besides, Girlie, Jessicas
mother, had a rift with her siblings who lived in the same house and forbade Jessica to socialize with them. It
was likewise highly probable that the strained relations between Jessicas mother, uncle and aunt prevented
Jessica from confiding in them.
In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime
does not necessarily detract from the witness credibility as long as it is satisfactorily explained.[16] Jessica was
threatened by appellant that he would kill her mother and relatives if she reported the rape. A young girl like
Jessica can easily be mesmerized by fear of bodily harm and, unlike a mature woman, cannot be expected to
have the courage or confidence to immediately report a sexual assault on her, specially when a death threat
hangs over her head.[17]
In view of the credible testimony of Jessica, appellants defenses of denial and alibi deserve no
consideration. These weak defenses cannot stand against the positive identification and categorical testimony
of a rape victim.[18]
The court a quo convicted appellant of one count of frustrated rape in Criminal Case No. 97-151987,
the dispositive portion of which read:
 xxx xxx xxx.

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code
and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, and to pay the costs.

xxx xxx xxx.

SO ORDERED.[19]

However, we agree with the observation of the Solicitor General that the court a quo was referring to
Criminal Case No. 97-159185, and not Criminal Case No. 97-159187, in convicting appellant of frustrated rape:

The trial court convicted appellant of simple rape in Criminal Case No. 97-159185. However, the factual basis thereof in
the body of the decision reads:

With regard to Criminal Case No. 97-159185, the Court has gathered that sometime in April, 1994, at around 11:00 p.m.,
Jessica and her two siblings together with the accused were in their house, while their mother,
Girlie, was in Navotas buying fish. Jessica was watching TV in a lying position beside her two sleeping siblings, when the
accused held Jessicas right hand and jabbed her palm with his finger. Then he told her to remove her short pants, panty
and T-shirt, after which the accused removed his pants and with a balisong in his hand, he began kissing the sensitive
parts of her body. Then he placed himself on top of her and tried to have sexual intercourse with her. He succeeded in
nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the resistance offered by
her by struggling and kicking him. Nonetheless, the accused had orgasm and Jessicas sex organ was smeared with his
semen. (emphasis supplied, p. 2, Decision)

Such was the only rape incident where the trial court concluded there was no penetration.

On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of the trial courts
decision reads:

Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around 11:00 p.m., Jessica was
watching TV while the other siblings were asleep and her mother was away, when accused again made sexual advances to
her. She resisted and told accused she might become pregnant, but the accused persisted and threatened to kill her at that
very moment if she would not submit to his lust. As in the previous occasions, he again succeeded in having carnal
knowledge of the helpless and scared victim. After her defilement, the victim continually cried and the accused tried to
calm her down by assuring her that she would not be impregnated, because she has not yet began to have menstruation (p.
3, Decision)

Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described in Criminal Case
No. 97-159185 and not Criminal Case No. 97-159187 since this case refers to the November 1996 rape incident where the
findings of the trial court was that there was carnal knowledge.[20]

Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97-159187 is
further evidenced by the following paragraph found in page four of the trial court decision:

In Criminal Case 97-159185 and 97-159184, the acts of the accused in having carnal knowledge of the victim by
intimidation on two separate occasions in [the] early or middle part [of] 1996, and in November of the same year,
constitute two separate crimes of qualified rape under R.A. 7659 and the penalty prescribed therefore is death by lethal
injection.[21] (Emphasis Ours)

The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and 97-
159187, as borne out by the informations filed by the City Prosecutor.[22] Thus, the conviction for frustrated
rape should pertain to Criminal Case No. 97-159185 and not Criminal Case No. 97-159187.
 Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains appellants
contention that there is no such crime as frustrated rape, as we have ruled in a long line of cases.[23] Recently,
in People vs.Quinanola,[24] we again reiterated the rule:

Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In
People vs. Orita, the Court has explicitly pronounced:

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his
purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left
to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People
vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21, 1974,
58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without
rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there
is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al., 53 Phil. 694; United
States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.

Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998 [1927] where We
found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a stray decision inasmuch as it has not been reiterated in Our subsequent
decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632
(dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate
paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on
the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision.
The Eriia case, supra, might have prompted the law-making body to include the crime of frustrated rape in the
amendments introduced by said laws.

The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the
provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the occasion of
an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby penalize it, the
Court will see its continued usage in the statute book as being merely a persistent lapse in language. (emphasis ours)

Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful review of
the records, we find that the rape was in fact consummated. Jessica initially testified that, although appellant
did not succeed in inserting his penis in her vagina, she felt his sex organ touch hers and she saw and felt
semen come out of his penis and smear her vagina.[25] In response to the clarificatory questions asked by the
prosecutor, Jessica testified that the appellant was able to slightly penetrate her because she felt pain and her
vagina bled.[26] It has been held that, to be convicted of rape, there must be convincing and sufficient proof that
the penis indeed touched the labia or slid into the female organ, and not merely stroked the external surface
thereof.[27] Nevertheless, we have also ruled in cases where penetration is not established that the rape is
deemed consummated if the victim felt pain, or the medico-legal examination finds discoloration in the inner
lips of the vagina, or the labia minora is already gaping with redness, or the hymenal tags are no longer
visible.[28] In the present case, the victim testified that she felt pain and her vagina bled, indisputable indications
of slight penetration or, at the very least, that the penis indeed touched the labia and not merely stroked the
external surface thereof. Thus, the appellant should be found guilty of (consummated) rape and not merely
frustrated or attempted rape.
Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if rape is
committed when the victim is under 18 years of age and the offender is the common-law spouse of the parent
of the victim. However, the trial court was correct in not imposing the death penalty in Criminal Case Nos. 97-
159184 and 97-159187 because the qualifying circumstances of age and relationship of the victim to the
appellant were not alleged in the information.[29] Thus, appellant can only be convicted of simple rape
punishable by reclusion perpetua under Article 335 of the Revised Penal Code. However, in Criminal Case
Nos. 97-159185 and 97-159186, the appellant can be convicted of statutory rape also punishable
by reclusion perpetua under Article 335 of the Revised Penal Code inasmuch as the age of Jessica was
alleged in the information[30] and duly proven during the trial by the presentation of her birth certificate.[31]
We award moral damages of P50,000 for each count of rape as moral damages are automatically
awarded to rape victims without need of pleading or proof.[32] We also award civil indemnity ex delicto of
P50,000 for each count of rape in the light of the ruling that civil indemnity, which is distinct from moral
damages, is mandatory upon the finding of the fact of rape.[33] We likewise award exemplary damages of
P25,000 for each count of rape consistent with the prevailing jurisprudence on the matter.[34]
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-
159 184 to 87 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. 97-159 184, appellant is convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
4. In Criminal Case No. 97-159187, appellant is convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral
damages, P50,000 as civil indemnity and P25,000 as exemplary damages, or a total of P500,000. Costs
against appellant.
SO ORDERED.
Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

[1] Penned by Judge Perfecto Laguio, Jr.

[2] Rollo, pp. 6-9.
[3] Records, p. 13.
[4] Records, p. 33.
[5] TSN, February 17, 1998, p. 2; Exhibit E.
[6]
Exhibit C, records, p. 8.
[7]
Rollo, p. 23.
[8]
Rollo, p. 41.
[9]
People vs. Sabdani, 334 SCRA 498 [2000]; Pag-Ibig Village Association vs. Angon, 294 SCRA 554 [1998].
[10] Rollo, p. 26.
[11] People vs. Clado, 343 SCRA 729 [2000]; People vs. Mariano, 345 SCRA 17 [2000]; People vs. Sancha,
324 SCRA 646 [1998].
[12] Rollo, pp. 33-41.
[13] People vs. Bayona, 327 SCRA 190 [2000]; People vs. Calayca, 301 SCRA 192 [1999].
[14] People vs. Castillo, 335 SCRA 100 [2000].
[15] People vs. Bea Jr., 306 SCRA 653 [1999]; People vs. Antonio, 336 SCRA 366 [1998].
[16]
People vs. Santos, 368 SCRA 535 [2001]; People vs. Gonzales, 338 SCRA 371 [2000]; People vs. Padil,
318 SCRA 795 [1999].
[17] People vs. Narido, 316 SCRA 131 [1999]; People vs. Alimon, 257 SCRA 658 [1996].
[18]
People vs. Villaraza, 339 SCRA 666 [2000]; People vs. Ballesteros, 285 SCRA 438 [1998].
[19]
Rollo, p. 23.
[20]
Rollo, pp. 108-110.
[21]
Rollo, p. 26.
[22] Rollo, pp. 6-10.
[23] People vs. Aca-Ac, 357 SCRA 373 [2001]; People vs. Quinanola, 306 SCRA 710 [1999]; People vs. Orita,
184 SCRA 105 [1990].
[24] 306 SCRA 710 [1999].
[25] TSN, February 17, 1998, p. 5-6.
[26] TSN, February 23, 1999, p. 3.
[27] People vs. Campuhan, 329 SCRA 270, 280 [2000].
[28] Ibid. citing People vs. Villamor, 199 SCRA 472 [1991], People vs. Palicte 229 SCRA 543 [1994], People vs.
Sanchez, 250 SCRA 14 [1995], People vs. Gabris, 258 SCRA 663 [1996], People vs. Gabayron, 278
SCRA 78 [1997].
[29] People vs. Mendoza, G.R. Nos. 132923-24, June 6, 2002; People vs. Gabiana, 338 SCRA 562
[2000]; People vs. Dimapilis, 300 SCRA 279 [1998].
[30]
Rollo, pp. 7-8.
[31] Exhibit E.
[32] People vs. Catubig, 363 SCRA 621 [2001]; People vs. Sarmiento, 344 SCRA 345 [2000].
[33] People vs. Quilatan, 341 SCRA 247 [2000]; People vs. Narido, 316 SCRA 131 [1999].
[34] People vs. Patanayan, Jr., G.R. Nos. 141189-141202, July 23, 2002.
 

 
FIRST DIVISION
  

  

ESMERALDO RIVERA, ISMAEL G.R. No. 166326

RIVERA, EDGARDO RIVERA,
Petitioners, Present:
PANGANIBAN, C.J., Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
- versus - CALLEJO, SR., and
CHICO-NAZARIO, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. January 25, 2006

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

DECISION

CALLEJO, SR., J.:

  

  

This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA‐G.R. CR No. 27215 affirming, with 
modification,  the  Decision[2] of  the  Regional  Trial  Court  (RTC)  of Cavite,  Branch  90,  in  Criminal  Case  No.  6962‐99, 
entitled People of the Philippines. v. Esmeraldo Rivera, et al. 

On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael and Edgardo, 
all surnamed Rivera, of attempted murder. The accusatory portion of the Information reads: 

That on or about the 3rd day of May 1998, in the Municipality of Dasmarias, Province of Cavite, 
Philippines, and within the jurisdiction of this Honorable Court, the above‐named accused, conspiring, 
confederating  and  mutually  helping  one  another,  with  intent  to  kill,  with  treachery  and  evident 
premeditation,  did  then  and  there,  wilfully,  unlawfully,  and  feloniously  attack,  assault  and  hit  with  a 
piece of hollow block, one RUBEN RODIL who thereby sustained a non‐mortal injury on his head and on 
the different parts of his body, the accused thus commenced the commission of the felony directly by 
overt acts, but failed to perform all the acts of execution which would produce the crime of Murder by 
reason of some causes other than their own spontaneous desistance, that is, the said Ruben Rodil was 
able to ran (sic) away and the timely response of the policemen, to his damage and prejudice. 

CONTRARY TO LAW.[3] 

Ruben Rodil testified  that  he used to work as  a taxi driver. He  stopped driving  in April 1998 after a would‐be 

rapist  threatened  his  life.  He  was  even  given  a  citation  as  a Bayaning  Pilipino by  the  television  network  ABS‐CBN  for 
saving the would‐be victim. His wife eked out a living as a manicurist. They and their three children resided in Barangay 
San Isidro Labrador II, Dasmarias, Cavite, near the house of Esmeraldo Rivera and his brothers Ismael and Edgardo. 

At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being jobless and 
dependent on his wife for support. Ruben resented the rebuke and hurled invectives at Edgardo. A heated exchange of 
words ensued. 

At  about 7:30 p.m. the next day,  a Sunday, Ruben went to the  store to buy food and to  look for his wife. His 

three‐year‐old  daughter  was  with  him.  Momentarily,  Esmeraldo  and  his  two  brothers,  Ismael  and  Edgardo,  emerged 
from  their  house  and  ganged  up  on  Ruben.  Esmeraldo  and  Ismael  mauled  Ruben  with  fist  blows  and  he  fell  to  the 
ground. In that helpless position, Edgardo hit Ruben three times with a hollow block on the parietal area. Esmeraldo and 
Ismael continued mauling Ruben. People who saw the incident shouted: Awatin sila! Awatin sila! Ruben felt dizzy but 
managed  to  stand  up.  Ismael  threw  a  stone  at  him,  hitting  him  at  the  back.  When  policemen  on  board  a  mobile  car 
arrived, Esmeraldo, Ismael and Edgardo fled to their house. 

Ruben  was  brought  to  the  hospital.  His  attending  physician,  Dr.  Lamberto  Cagingin,  Jr.,  signed  a  medical 
certificate  in  which  he  declared  that  Ruben  sustained  lacerated  wounds  on  the  parietal  area,  cerebral  concussion  or 
contusion,  hematoma  on  the  left  upper  buttocks,  multiple  abrasions  on  the  left  shoulder  and  hematoma  periorbital 
left.[4] The doctor declared that the lacerated wound in the parietal area was slight and superficial and would heal from 
one to seven days.[5] The doctor prescribed medicine for Rubens back pain, which he had to take for one month.[6] 

Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and banged the gate. 
Ruben challenged him and his brothers to come out and fight. When he went out of the house and talked to Ruben, the 
latter punched him. They wrestled with each other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His 
wife arrived, and he was pulled away and brought to their house. 

For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed him by 
the  hair.  He  managed  to  free  himself  from  Ruben  and  the  latter  fled.  He  went  home  afterwards.  He  did  not  see  his 
brother Edgardo at the scene. 

Edgardo  declared  that  at  about 1:00  p.m. on May  3,  1998,  he  was  throwing  garbage  in  front  of  their  house. 
Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate and ordered him to get 
out of their house and even threatened to shoot him. His brother Esmeraldo went out of their house and asked Ruben 
what  the  problem  was.  
A fist fight ensued. Edgardo rushed out of the house and pushed Ruben aside. Ruben fell to the ground. When he stood 
up, he pulled at Edgardos shirt and hair, and, in the process, Rubens head hit the lamp post.[7] 

On August  30,  2002,  the  trial  court  rendered  judgment  finding  all  the  accused  guilty  beyond  reasonable  doubt  of 
frustrated murder. The dispositive portion of the decision reads: 

WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt and are 
sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor as the 
prosecution has proved beyond reasonable doubt the culpability of the accused. Likewise, the accused 
are to pay, jointly and severally, civil indemnity to the private complainant in the amount of P30,000.00. 
 SO ORDERED.[8] 

The trial court gave no credence to the collective testimonies of the accused and their witnesses. The accused appealed 
to the CA, which rendered judgment on June 8, 2004 affirming, with modification, the appealed decision. The dispositive 
portion of the CA decision reads: 

WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in that the 
appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years 
of prision  correccionalas  minimum  to  6  years  and  1  day  of prision  mayor as  maximum.  In  all  other 
respects, the decision appealed from is AFFIRMED. 

SO ORDERED.[9] 

The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA erred in affirming 
the RTC decision. They insist that the prosecution failed to prove that they had the intention to kill Ruben when they 
mauled and hit him with a hollow block. Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben sustained 
only a superficial wound in the parietal area; hence, they should be held criminally liable for physical injuries only. Even 
if petitioners had the intent to kill Ruben, the prosecution failed to prove treachery; hence, they should be held guilty 
only of attempted homicide. 

On the other hand, the CA held that the prosecution was able to prove petitioners intent to kill Ruben: 

On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and the 
kind of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony as follows: 

Q: And while you were being boxed by Esmeraldo and Bong, what happened next? 

A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow 
block xxx and hit me thrice on the head, Sir.  

Q: And what about the two (2), what were they doing when you were hit with a hollow 
block by Dagol? 

A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, 
Sir. 

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit 
his  head,  and  had  the  police  not  promptly  intervened  so  that  the  brothers  scampered  away.  When  a 
wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill 
was shown by the fact that the (3) brothers helped each other maul the defenseless victim, and even 
after he had already fallen to the ground; that one of them even picked up a cement hollow block and 
proceeded  to  hit  the  victim  on  the  head  with  it  three  times;  and  that  it  was  only  the  arrival  of  the 
policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.[10] 

The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct, thus: 

The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised 
by petitioners. The crime has been clearly established with petitioners as the perpetrators. Their intent 
to kill is very evident and was established beyond reasonable doubt. 
 Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the 
victim Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by Esmeraldo Baby 
Rivera. They further narrated that, soon thereafter, his two brothers Ismael and Edgardo Dagul Rivera, 
coming  from  St.  Peter  
II,  ganged  up  on  the  victim.  Both  Alicia  Vera  Cruz  and  Lucita  Villejo  recounted  that  they  saw  Edgardo 
Dagul Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review of their 
testimonies revealed the suddenness and unexpectedness of the attack of petitioners. In this case, the 
victim did not even have the slightest warning of the danger that lay ahead as he was carrying his three‐
year  old  daughter.  He  was  caught  off‐guard  by  the  assault  of  Esmeraldo  Baby  Rivera  and  the 
simultaneous  attack  of  the  two  other  petitioners.  It  was  also  established  that  the  victim  was  hit  by 
Edgardo  Dagul  Rivera,  while  he  was  lying  on  the  ground  and  being  mauled  by  the  other  petitioners. 
Petitioners could have killed the victim had he not managed to escape and had the police not promptly 
intervened. 

Petitioners also draw attention to the  fact that the injury sustained by the victim was superficial  and, 

thus,  not  life  threatening.  The  nature  of  the  injury  does  not  negate  the  intent  to  kill.  The  Court  of 
Appeals held: 

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow 
block  directly  hit  his  head,  and  had  the  police  not  promptly  intervened  so  that  the 
brothers scampered away. When a wound is not sufficient to cause death, but intent to 
kill is evident, the crime is attempted. Intent to kill was shown by the fact that the three 
(3)  brothers  helped  each  other  maul  the  defenseless  victim,  and  even  after  he  had 
already  fallen  to  the  ground;  that  one  of  them  picked  up  a  cement  hollow  block  and 
proceeded  to  hit  the  victim  on  the  head  with  it  three  times;  and  that  it  was  only  the 
arrival  of  the  policemen  that  made  the  appellants  desist  from  their  concerted  act  of 
trying to kill Ruben Rodil.[11] 

The petition is denied for lack of merit. 

An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent 
of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a 
specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is 
presumed from the commission of a felony by dolo. 

In People  v.  Delim,[12] the  Court  declared  that  evidence  to  prove  intent  to  kill  in  crimes  against  persons  may 
consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the  
victim,  the  conduct  of  the  malefactors  before,  at  the  time,  or  immediately  after  the  killing  of  the  victim,  the 
circumstances under which the crime was committed and the motives of the accused. If the victim dies as a result of a 
deliberate act of the malefactors, intent to kill is presumed. 

In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of petitioners to 
kill  Ruben.  Esmeraldo  and  Ismael  pummeled  the  victim  with  fist  blows.  Even  as  Ruben  fell  to  the  ground,  unable  to 
defend himself against the sudden and sustained assault of petitioners, Edgardo hit him three times with a hollow block. 
Edgardo tried to hit Ruben on the head, missed, but still managed to hit the victim only in the parietal area, resulting in a 
lacerated wound and cerebral contusions. 
That the head wounds sustained by the victim were merely superficial and could not have produced his death does not 
negate petitioners criminal liability for attempted murder. Even if Edgardo did not hit the victim squarely on the head, 
petitioners are still criminally liable for attempted murder. 

The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus: 

There is an attempt when the offender commences the commission of a felony directly by overt acts, 
and  does  not  perform  all  the  acts  of  execution  which  should  produce  the  felony  by  reason  of  some 
cause or accident other than his own spontaneous desistance. 

The essential elements of an attempted felony are as follows: 

1. The offender commences the commission of the felony directly by overt acts; 

2. He does not perform all the acts of execution which should produce the felony; 

3. The offenders act be not stopped by his own spontaneous desistance; 

4.  The  non‐performance  of  all  acts  of  execution  was  due  to  cause  or  accident  other  than  his 
spontaneous desistance.[13] 

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

(1) That there be external acts; 

(2) Such external acts have direct connection with the crime intended to be committed.[14] 

The Court in People v. Lizada[15] elaborated on the concept of an overt or external act, thus: 

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a 
particular  crime,  more  than  a  mere  planning  or  preparation,  which  if  carried  out  to  its  complete 
termination  following  its  natural  course,  without  being  frustrated  by  external  obstacles  nor  by  the 
spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. 
The raison detre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the 
accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily 
so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the 
act becomes one which may be said to be a commencement of the commission of the crime, or an overt 
act or before any fragment of the crime itself has been committed, and this is so for the reason that so 
long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It 
is necessary that the  overt act should have been the ultimate step towards the  consummation of the 
design.  It  is  sufficient  if  it  was  the  first  or  some  subsequent  step  in  a  direct  movement  towards  the 
commission of the offense after the preparations are made. The act done need not constitute the last 
proximate one for completion. It is necessary, however, that the attempt must have a causal relation to 
the  intended  crime.  In  the  words  of  Viada,  the  overt  acts  must  have  an  immediate  and  necessary 
relation to the offense.[16] 

In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling the victim and hitting 
him three times with a hollow block; they narrowly missed hitting the middle portion of his head. If Edgardo had done so, 
Ruben would surely have died. 
We  reject  petitioners  contention  that  the  prosecution  failed  to  prove  treachery  in  the  commission  of  the  felony. 
Petitioners  attacked  the  victim  in  a  sudden  and  unexpected  manner  as  Ruben  was  walking  with  his  three‐year‐old 
daughter,  impervious  of  the  imminent  peril  to  his  life.  He  had  no  chance  to  defend  himself  and  retaliate.  He  was 
overwhelmed by the synchronized assault of the three siblings. The essence of treachery is the sudden and unexpected 
attack on the victim.[17] Even if the attack is frontal but is sudden and unexpected, giving no opportunity for the victim to 
repel  it  or  defend  himself,  there  would  be  treachery.[18] Obviously,  petitioners  assaulted  the  victim  because  of  the 
altercation between him and petitioner Edgardo Rivera a day before. There being conspiracy by and among petitioners, 
treachery is considered against all of them.[19] 

The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision correccional in 
its minimum period, as minimum, to six years and one day of prision mayor in its maximum period, as maximum. This is 
erroneous. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder 
is reclusion perpetua to death. Since petitioners are guilty only of attempted murder, the penalty should be reduced by 
two degrees, conformably to Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in relation to Article 
71  of  the  Revised  Penal  Code,  such  a  penalty  is prision  mayor.  In  the  absence  of  any  modifying  circumstance  in  the 
commission  of  the  felony  (other  than  the  qualifying  circumstance  of  treachery),  the  maximum  of  the  indeterminate 
penalty shall be taken from the medium period of prision mayor which has a range of from eight (8) years and one (1) 
day to ten (10) years. To determine the minimum of the indeterminate penalty, the penalty of prision mayor should be 
reduced by one degree,prision correccional, which has a range of six (6) months and one (1) day to six (6) years. 

Hence,  petitioners  should  be  sentenced  to  suffer  an  indeterminate  penalty  of  from  two  (2)  years  of prision 
correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium 
period, as maximum. 

IN  LIGHT  OF  ALL  THE  FOREGOING,  the  petition  is DENIED for  lack  of  merit.  The  Decision  of  the  Court  of  Appeals 
is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer an indeterminate penalty of from two 
(2)  years  of prision  correccional in  its  minimum  period,  as  minimum,  to  nine  (9)  years  and  four  (4)  months  of prision 
mayor in its medium period, as maximum. No costs. 

SO ORDERED.  

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice 
 C E R T I F I C A T I O N
  

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision were 
reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. 

  

ARTEMIO V. PANGANIBAN 

Chief Justice 

[1] Penned by Associate Justice Portia Alio-Hormachuelos (Chairman), with Associate Justices Danilo B. Pine and
Fernanda Lampas Peralta, concurring; rollo, pp. 17-29.
[2] Penned by Judge Dolores L. Espaol; CA rollo, pp. 15-19.
[3]
Records, p. 1.
[4]
Exhibits B and B-1, records, p. 9.
[5] Id.
[6] TSN, June 19, 2000, p. 29.
[7] TSN, September 24, 2001, pp. 2-18.
[8]
Records, p. 257.
[9]
CA rollo, p. 136.
[10]
Rollo, pp. 25-26.
[11] Id. at 70-71.
[12] G.R. No. 142773, January 28, 2003, 444 Phil. 430, 450 (2003).
[13] People v. Lizada, G.R. No. 143468-71, January 24, 2003, 444 Phil. 67 (2003).
[14]
Reyes, Revised Penal Code, 1981, Vol. I, p. 98.
[15]
Supra at note 13.
[16] Id. at 98-99.
[17] People v. Gutierrez, G.R. No. 142905, March 18, 2002, 429 Phil. 124, 126 (2002).
[18] People v. Coscos, G.R. No. 132321, January 21, 2002, 424 Phil. 886, 903 (2002).
[19] People v. Sullano, G.R. No. 125896, May 11, 2000, 387 Phil. 668, 682 (2000).

 
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 165483 September 12, 2006

RUJJERIC Z. PALAGANAS,1 petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CHICO-NAZARIO, J.:

For what is a man, what has he got?

If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!

The song evokes the bitterest passions. This is not the first time the song "My Way"2 has triggered violent
behavior resulting in people coming to blows. In the case at bar, the few lines of the song depicted what came
to pass when the victims and the aggressors tried to outdo each other in their rendition of the song.

In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z.
Palaganas prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30
September 2004,4 affirming with modification the Decision of the Regional Trial Court (RTC), Branch 46, of
Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634, dated 28 October
1998,5 finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the
Revised Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and
50 of the same Code.

On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under
four (4) separate Informations6 for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1)
count for Violation of COMELEC Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus
Election Code,8allegedly committed as follows:

CRIMINAL CASE NO. U-9608

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with
intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully,
unlawfully and feloniously shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot
wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral region," the accused
having thus performed all the acts of execution which would have produced the crime of Murder as a
consequence, but which nevertheless, did not produce it by reason of the causes independent of the
will of the accused and that is due to the timely medical assistance rendered to said Servillano J. Ferrer,
Jr. which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9609

 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with
intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully,
unlawfully and feloniously shoot MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot
wound on the right shoulder, the accused having thus performed all the acts of execution which would
have produced the crime of murder as a consequence, but which nevertheless, did not produce it by
reason of the causes independent of the will of the accused and that is due to the medical assistance
rendered to said Michael "Boying" Ferrer which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9610

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with
intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully,
unlawfully and feloniously shoot MELTON FERRER alias "TONY FERRER", inflicting upon him mortal
gunshot wounds in the head and right thigh which caused the instantaneous death of said Melton
"Tony" Ferrer, to the damage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.

CRIMINAL CASE NO. U-9634

That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag,
Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused did then and
there willfully, unlawfully and feloniously bear and carry one (1) caliber .38 without first securing the
necessary permit/license to do the same.

CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE,
as amended.9 (Underscoring supplied.)

When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon
motion of Ferdinand,11 the four cases were consolidated and were assigned to Branch 46 of the RTC in
Urdaneta, Pangasinan.12

The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of
the Office of the Solicitor General,13 to wit:

On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all
surnamed Ferrer were having a drinking spree in their house because [Melton], who was already living
in San Fernando, La Union, visited his three brothers and mother at their house in Sitio Baloking,
Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to
Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag to continue
their drinking spree and to sing. Inside the karaoke bar, they were having a good time, singing and
drinking beer.

Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and
Virgilio Bautista. At that time, only the Ferrer brothers were the customers in the bar. The two groups
occupied separate tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang along with
him as he was familiar with the song [My Way]. Jaime however, resented this and went near the table
of the Ferrer brothers and said in Pangasinan dialect "As if you are tough guys." Jaime further said
"You are already insulting me in that way." Then, Jaime struck Servillano Ferrer with the microphone,
hitting the back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the
Palaganases, on the other hand. Virgilio Bautista did not join the fray as he left the place. During the
 rumble, Ferdinand went out of the bar. He was however pursued by Michael. When Servillano saw
Michael, he also went out and told the latter not to follow Ferdinand. Servillano and Michael then went
back inside the bar and continued their fight with Jaime.

Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them.
Servillano noticed that his wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer
brothers went outside. They saw Ferdinand about eight (8) meters away standing at Rizal Street.
Ferdinand was pointing at them and said to his companion, later identified as petitioner [Rujjeric]
Palaganas, "Oraratan paltog mo lara", meaning "They are the ones, shoot them." Petitioner then shot
them hitting Servillano first at the left side of the abdomen, causing him to fall on the ground, and
followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer
moving, he told Michael "Bato, bato." Michael picked up some stones and threw them at petitioner and
Ferdinand. The latter then left the place. Afterwards, the police officers came and the Ferrer brothers
were brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later
discovered that [Melton] was fatally hit in the head while Michael was hit in the right shoulder.

On the other hand, the defense, in its Appellant's Brief dated 3 December 1999,14 asserted the following set of
facts:

On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the
brothers Melton (Tony), Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table
inside the Tidbits Café and Videoke Bar and started drinking and singing. About thirty minutes later,
Jaime Palaganas along with his nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar
and occupied a table near that of the Ferrers'.

After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then
started to sing. On his third song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang
loudly and in an obviously mocking manner. This infuriated Jaime, who then accosted Tony, saying,
"You are already insulting us." The statement resulted in a free for all fight between the Ferrers', on one
hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on the face and
was chased outside of the bar by Junior and Boying Ferrer.

Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the
help of the latter. Rujjeric, stirred from his sleep by his brother's shouts, went out of his house and,
noticing that the van of his uncle was in front of the Tidbits Videoke Bar, proceeded to that place.
Before reaching the bar, however, he was suddenly stoned by the Ferrer brothers and was hit on
different parts of his body, so he turned around and struggled to run towards his house. He then met his
brother, Ferdinand, going towards the bar, so he tugged him and urged him to run towards the opposite
direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that
Ferdinand was carrying a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer
brothers and fired one shot in the air to force the brothers to retreat. Much to his surprise, however, the
Ferrer brothers continued throwing stones and when (sic) the appellant was again hit several times.
Unable to bear the pain, he closed his eyes and pulled the trigger.

On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide
and two (2) counts of Frustrated Homicide.15 He was, however, acquitted of the charge of Violation of
COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus Election Code.16 On the other hand,
Ferdinand was acquitted of all the charges against him.17

In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and
Frustrated Murder, the trial court explained that there was no conspiracy between petitioner and Ferdinand in
killing Melton and wounding Servillano and Michael.18 According to the trial court, the mere fact that Ferdinand
"pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog mo lara!" (They are the
ones, shoot them!), does not in itself connote common design or unity of purpose to kill. It also took note of the
fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on
the night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being
assaulted by the Ferrer brothers. It further stated that the shooting was instantaneous and without any prior
plan or agreement with Ferdinand to execute the same. It found that petitioner is solely liable for killing Melton
and for wounding Servillano and Michael, and that Ferdinand is not criminally responsible for the act of
petitioner.

Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder
since the Ferrer brothers were given the chance to defend themselves during the shooting incident by stoning
the petitioner and Ferdinand.19 It reasoned that the sudden and unexpected attack, without the slightest
provocation on the part of the victims, was absent. In addition, it ratiocinated that there was no evident
premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand called the
petitioner for help up to the point of the shooting of the Ferrer brothers.20 Petitioner was sleeping at his house
at the time he heard Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless
shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke
bar where they met the Ferrer brothers and, shortly afterwards, the shooting ensued. In other words, according
to the trial court, the sequence of the events are so fast that it is improbable for the petitioner to have ample
time and opportunity to then plan and organize the shooting.

Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or
imminent danger to his life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar.21 It
noted that when petitioner and Ferdinand saw the Ferrer brothers outside the videoke bar, the latter were not
carrying any weapon. Petitioner then was free to run or take cover when the Ferrer brothers started pelting
them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by
petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter
were only equipped with stones, and that the gun was deadlier compared to stones. Moreover, it also found
that petitioner used an unlicensed firearm in shooting the Ferrer brothers.22

As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election
Code, the trial court acquitted the petitioner of the offense as his use and possession of a gun was not for the
purpose of disrupting election activities.23 In conclusion, the trial court held:

WHEREFORE, JUDGMENT is hereby rendered as follows:

1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable
doubt of the crime of HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty
imposable is in its maximum period which is 20 years. The Court sentences [Rujjeric] Palaganas to
suffer the penalty of Reclusion Temporal in its maximum period or 20 years of imprisonment; and to
pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical expenses of [MELTON]
Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON]; P50,000.00 for
the death of [MELTON];P50,000.00 for exemplary damages and P100,000.00 for burial and funeral
expenses.

Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and
likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable
doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed
firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12
years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical expenses
andP50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for
failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable
doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed
 firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12
years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical expenses
and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for
failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the
amount of P100,000.00 as attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.

4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of [Rujjeric]
Palaganas beyond reasonable doubt of the crime of Violation of COMELEC Resolution No. 2958 in
relation with Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC]
PALAGANAS.24

Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court
of Appeals. In its Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the
assailed RTC Decision. In modifying the Decision of the trial court, the appellate court held that the mitigating
circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal Code should be appreciated
in favor of petitioner since the latter, accompanied by his counsel, voluntarily appeared before the trial court,
even prior to its issuance of a warrant of arrest against him.25 It also stated that the Indeterminate Sentence
Law should be applied in imposing the penalty upon the petitioner.26 The dispositive portion of the Court of
Appeals' Decision reads:

WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that
the penalty to be imposed for the crimes which the appellant committed are as follows:

(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of
ten (10) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion
temporalas maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil indemnity in the
amount ofP50,000.00, moral damages in the amount of P50,000.00 without need of proof and actual
damages in the amount of P43,556.00.

(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to
suffer imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10)
years ofprision mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual damages in
the amount of P2,259.35 and moral damages in the amount of P30,000.00.

(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with
imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years
ofprision mayor as maximum. Appellant is also ordered to pay Servillano Ferrer actual damages in the
amount of P163,569.90 and moral damages in the amount of P30,000.00.27

On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the
following arguments:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF

CONVICTION OF THE TRIAL COURT.

II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT

ON THE GROUND OF LAWFUL SELF-DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant
case and, thus, his acquittal on all the charges is proper; that when he fired his gun on that fateful night, he
was then a victim of an unlawful aggression perpetrated by the Ferrer brothers; that he, in fact, sustained an
injury in his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that the appellate
court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O" should have been given
due weight since it shows that there was slug embedded on the sawali wall near the sign "Tidbits Café and
Videoke Bar"; that the height from which the slug was taken was about seven feet from the ground; that if it
was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the videoke bar in order to
shoot them, then the trajectory of the bullets would have been either straight or downward and not upward
considering that the petitioner and the Ferrer brothers were about the same height (5'6"-5'8"); that the slug
found on the wall was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was properly
appreciated by the trial court, petitioner would be acquitted of all the charges.29

Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful
aggressors since there would have been no occasion for the petitioner to fire a warning shot if the Ferrer
brothers did not stone him; that the testimony of Michael in the trial court proved that it was the Ferrer brothers
who provoked petitioner to shoot them; and that the Ferrer brothers pelted them with stones even after the
"warning shot."30

Petitioner's contention must fail.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a
plea of self-defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself. x x x.

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an

imminent and immediate manner, which places the defendant's life in actual peril.31 It is an act positively strong
showing the wrongful intent of the aggressor and not merely a threatening or intimidating attitude.32 It is also
described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the
person attacked.33

There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb,
or right of the person invoking self-defense. There must be actual physical force or actual use of weapon.34 In
order to constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and
limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.35

In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that
justified the act of petitioner in shooting them. There were no actual or imminent danger to the lives of
petitioner and Ferdinand when they proceeded and arrived at the videoke bar and saw thereat the Ferrer
brothers. It appears that the Ferrer brothers then were merely standing outside the videoke bar and were not
carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing his gun.36

Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter
with stones, the shooting of the Ferrer brothers is still unjustified. When the Ferrer brothers started throwing
stones, petitioner was not in a state of actual or imminent danger considering the wide distance (4-5 meters) of
the latter from the location of the former.37 Petitioner was not cornered nor trapped in a specific area such that
he had no way out, nor was his back against the wall. He was still capable of avoiding the stones by running
away or by taking cover. He could have also called or proceeded to the proper authorities for help. Indeed,
petitioner had several options in avoiding dangers to his life other than confronting the Ferrer brothers with a
gun.

The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown
by the Ferrer brothers, does not signify that he was a victim of unlawful aggression or that he acted in self-
defense.38 There is no evidence to show that his wounds were so serious and severe. The superficiality of the
injuries sustained by the petitioner is no indication that his life and limb were in actual peril.39

Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt
him with stones,40 will not matter exonerate him from criminal liability. Firing a warning shot was not the last
and only option he had in order to avoid the stones thrown by the Ferrer brothers. As stated earlier, he could
have run away, or taken cover, or proceeded to the proper authorities for help. Petitioner, however, opted to
shoot the Ferrer brothers.

It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and
Michael. With regard to Melton, a bullet hit his right thigh, and another bullet hit his head which caused his
instant death.41As regards Servillano, a bullet penetrated two of his vital organs, namely, the large intestine
and urinary bladder.42 He underwent two (2) surgeries in order to survive and fully recover.43 Michael, on the
other hand, sustained a gunshot wound on the right shoulder.44 It must also be noted that the Ferrer brothers
were shot near the videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers.
Given the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful
aggressors. As correctly observed by the prosecution, if the petitioner shot the Ferrer brothers just to defend
himself, it defies reason why he had to shoot the victims at the vital portions of their body, which even led to
the death of Melton who was shot at his head.45 It is an oft-repeated rule that the nature and number of wounds
inflicted by the accused are constantly and unremittingly considered important indicia to disprove a plea of self-
defense.46

Let it not be forgotten that unlawful aggression is a primordial element in self-defense.47 It is an essential and
indispensable requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense,
no complete or incomplete self-defense.48 Without unlawful aggression, self-defense will not have a leg to
stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are
present.49 To our mind, unlawful aggression, as an element of self-defense, is wanting in the instant case.

The second element of self-defense requires that the means employed by the person defending himself must
be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the
means employed may take into account the weapons, the physical condition of the parties and other
circumstances showing that there is a rational equivalence between the means of attack and the defense.50 In
the case at bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable and necessary means
of repelling the aggression allegedly initiated by the Ferrer brothers. As aptly stated by the trial court,
petitioner's gun was far deadlier compared to the stones thrown by the Ferrer brothers.51

Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had
other less harmful options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness
of the means employed in preventing or repelling an unlawful aggression.

With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the
ground of lawful self-defense.

Petitioner's argument is bereft of merit.

In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court
consistently held that where an accused admits killing the victim but invokes self-defense, it is incumbent upon
the accused to prove by clear and convincing evidence that he acted in self-defense.52 As the burden of
evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his
own evidence and not on the weakness of the prosecution.53

As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified
the act of petitioner in shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to
shoot them, the latter's use of a gun was not a reasonable means of repelling the act of the Ferrer brothers in
throwing stones. It must also be emphasized at this point that both the trial court and the appellate court found
that petitioner failed to established by clear and convincing evidence his plea of self-defense. In this regard, it
is settled that when the trial court's findings have been affirmed by the appellate court, said findings are
generally conclusive and binding upon this Court.54 In the present case, we find no compelling reason to
deviate from their findings. Verily, petitioner failed to prove by clear and convincing evidence that he is entitled
to an acquittal on the ground of lawful self-defense.

On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the
crime of Homicide for the death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the
serious injuries sustained by Servillano in Criminal Case No. U-9608, we do not, however, concur in their ruling
that petitioner is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case No. U-9609.
We hold that petitioner therein is guilty only of the crime of Attempted Homicide.

Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner:

ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those
which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for the for its execution and accomplishment
are present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason or causes
independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance (italics supplied).

Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as
follows:

1.) In frustrated felony, the offender has performed all the acts of execution which should produce the
felony as a consequence; whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform all the acts of execution.

2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent
of the will of the perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of
the crime is a cause or accident other than the offender's own spontaneous desistance.

In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his
victim, as manifested by his use of a deadly weapon in his assault, and his victim sustained fatal or mortal
wound/s but did not die because of timely medical assistance, the crime committed is frustrated murder or
frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the
Revised Penal Code are present.55 However, if the wound/s sustained by the victim in such a case were not
fatal or mortal, then the crime committed is only attempted murder or attempted homicide.56 If there was no
intent to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime
committed may be serious, less serious or slight physical injury.57
Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and
treated Michael, the latter was admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a
single gunshot wound in his right shoulder caused by the shooting of petitioner.58 It was also stated in his
medical certificate that he was discharged on the same day he was admitted and that the treatment duration
for such wound would be for six to eight days only.59 Given these set of undisputed facts, it is clear that the
gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for
his wound was short and he was discharged from the hospital on the same day he was admitted therein.
Therefore, petitioner is liable only for the crime of attempted homicide as regards Michael in Criminal Case No.
U-9609.

With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with
the trial court and the appellate court that the same must be applied against petitioner in the instant case since
the same was alleged in the informations filed against him before the RTC and proven during the trial.
However, such must be considered as a special aggravating circumstance, and not a generic aggravating
circumstance.

Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in
Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect
of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next
higher degree. It must always be alleged and charged in the information, and must be proven during the trial in
order to be appreciated.60 Moreover, it can be offset by an ordinary mitigating circumstance.

On the other hand, special aggravating circumstances are those which arise under special conditions to
increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the
next higher degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of
the Revised Penal Code. It does not change the character of the offense charged.61 It must always be alleged
and charged in the information, and must be proven during the trial in order to be appreciated.62 Moreover, it
cannot be offset by an ordinary mitigating circumstance.

It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are
exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating
circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary
mitigating circumstance.

Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance
provided for under Presidential Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is a special
law. Its pertinent provision states:

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is
generic or qualifying."65 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the
accused."66 Since a generic aggravating circumstance is more favorable to petitioner compared to a qualifying
aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by
degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be
considered only as a generic aggravating circumstance.67 This interpretation is erroneous since we already
held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not
a generic aggravating circumstance.68 Republic Act No. 8294 applies to the instant case since it took effect
before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the
petitioner in the instant case should be designated and appreciated as a SPECIAL aggravating circumstance
and not merely a generic aggravating circumstance.

As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating
circumstance. Voluntary surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus,
it cannot offset the special aggravating circumstance of use of unlicensed firearm. In accordance with Article
64, paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should be in its maximum
period.69

As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both
courts.

In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity
isP50,000.00, and that the proper amount for moral damages is P50,000.00 pursuant to prevailing
jurisprudence.70However, based on the receipts for hospital, medicine, funeral and burial expenses on record,
and upon computation of the same, the proper amount of actual damages should be P42,374.18, instead
of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there was no
documentary evidence to substantiate the same.71 Although there may be exceptions to this rule,72 none is
availing in the present case. Nevertheless, since loss was actually established in this case, temperate
damages in the amount ofP25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224 of the
New Civil Code, temperate or moderate damages may be recovered when the court finds that some pecuniary
loss was suffered but its amount cannot be proved with certainty. Moreover, exemplary damages should be
awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was
already established.73 Based on prevailing jurisprudence, the award of exemplary damages for homicide
is P25,000.00.74

In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and
its corresponding amount since the same is supported by documentary proof therein. The award of moral
damages is also consistent with prevailing jurisprudence. However, exemplary damages should be awarded in
this case since the presence of special aggravating circumstance of use of unlicensed firearm was already
established. Based on prevailing jurisprudence, the award of exemplary damages for both the attempted and
frustrated homicide shall be P25,000.00 for each.

WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is
herebyAFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty
imposable on the petitioner is prision correccional under Article 51 of the Revised Penal Code.75 There being a
special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence
of Law, the penalty now becomes four (4) years and two (2) months of arresto mayor as minimum period to six
(6) years of prision correccional as maximum period. As regards the civil liability of petitioner, the latter is
hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of Appeals.

(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision
mayor under Article 50 of the Revised Penal Code.76 There being a special aggravating circumstance of the
use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now becomes six (6)
years ofprision correccional as minimum period to twelve (12) years of prision mayor as maximum period. As
regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer exemplary damages
in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of
Appeals.

(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion
temporal under Article 249 of the Revised Penal Code.77 There being a special aggravating circumstance of
the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now is twelve (12)
years of prision mayor as minimum period to twenty (20) years of reclusion temporal as maximum period. As
regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary damages in
the amount ofP25,000.00 in addition to the actual damages and moral damages awarded by the Court of
Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18.

SO ORDERED.
Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

Footnotes

1Also referred to as Rojeric Palaganas y Zarate in the Informations, and Decisions of the trial court and the Court
of Appeals.

2 Music by Paul Anka; Sung and popularized by Frank Sinatra.

3 Rollo, pp. 9-23.

4Penned by Associate Justice Vicente S.E. Veloso with Associate Justices Roberto A. Barrios and Amelita G.
Tolentino, concurring; rollo, pp. 24-43.

5 Penned by Judge Modesto C. Juanson; id. at 44-75.

6 Records, Volume I, pp. 1-2 and 10, Volume II, pp. 1-2 and Volume III, p.1.

7RULES AND REGULATIONS ON: (A) BEARING, CARRYING OR TRANSPORTING FIREARMS OR OTHER
DEADLY WEAPONS; (B) SECURITY PERSONNEL OR BODYGUARDS; (C) BEARING ARMS BY ANY
MEMBER OF SECURITY OR POLICE ORGANIZATION OF GOVERNMENT AND OTHERS; (D)
ORGANIZATION OR MAINTENANCE OF REACTION FORCES DURING THE ELECTION PERIOD IN
CONNECTION WITH THE MAY 11, 1998 ELECTIONS. (Promulgated on December 23, 1997).

8Omnibus Election Code of the Philippines (December 3, 1985), Article XXII – ELECTION OFFENSES, Sec.
261. Prohibited Acts. - par. (p): Deadly weapons – Any person who carries any deadly weapon in the polling place
and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of
voters in the polling place, voting, counting of votes, or preparation of the election returns. However, in cases of
affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the
election is entitled to carry firearms or any other weapon for the purpose of preserving order and enforcing the law
x x x. Par. (q) Carrying firearms outside residence or place of business. – Any person who, although possessing a
permit to carry firearms, carries any firearms outside his residence or place of business during the election period,
unless authorized in writing by the Commission x x x.

9 Rollo, pp. 45-47.

10 Records, Volume I, p. 43; Volume II, p. 39, and Volume III, p. 41.

11 Id. at 35-36; id. at 43-44; and id. at 52.

12 Id. at 37 and id. at 45.

13 Rollo, pp. 101-119.

14 CA rollo, pp. 123-148.

15 Rollo, pp. 44-75.

16 Id. 17 Id. 18 Id. at 68-69. 19 Id. at p. 69. 20 Id. at pp. 69-70. 21 Id. at pp. 70-71. 22 Id. at 71-72. 23 Id. at 72.

24 Id. at 73-75. 25 Id. at 39. 26 Id. at 39-41. 27 Id. at 41-42. 28 Id. at 17. 29 Id. at 17-18. 30 Id. at 18-19.

31 People v. Alconga, 78 Phil. 366, 374 (1947).

32 People v. Arizala, 375 Phil. 666, 675 (1999).

33 People v. Bausing, G.R. No. 64965, 8 July 1991, 199 SCRA 355, 361.
34 People v. Crisostomo, 195 Phil. 162, 172 (1981).

35 Senoja v. People, G.R. No. 160341, 19 October 2004, 440 SCRA 695, 703.

36 Records, TSN, 2 July 1998, pp. 7-10.

37 CA rollo, p. 132.

38 Roca v. People., G.R. No. 114917, 29 January 2001, 350 SCRA 414, 423.

39 Id.

40 Rollo, pp. 18-19.

41 CA rollo, p. 40, records, TSN, 6 July 1998, pp. 8-12.

42 Id. at 41-42, records, TSN, 27 July 1998, pp. 2-8.

43 Id.

44 Id. at 42-43; records, TSN, 27 July 1998, pp. 2-8.

45 Rollo, p. 117.

46 Id.

47 People v. Cario, G.R. No. 123325, 31 March 1998, 288 SCRA 404, 417.

48 People v. Gallego, 453 Phil. 825, 839 (2003).

49 People v. Caratao, 451 Phil. 588, 602 (2002).

50 People v. Encomienda, 150-B Phil. 419, 433-434 (1972).

51 Rollo, p. 70.

52 Rendon v. People, G.R. No. 127089, 19 November 2004, 443 SCRA 142, 146.

53 People v. Castillano, Sr., 448 Phil. 482, 499-500 (2003).

54 People v. Castillo, G.R. No. 118912, 28 May 2004, 430 SCRA 40, 50.

55 People v. Costales, 424 Phil. 321, 334 (2002).

56 People v. Castillo, 426 Phil. 752, 768 (2002).

57 People v. Asuela, 426 Phil. 428, 452 (2002).

58 Supra note 43.

59 Id.

60 Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure.

61 People v. Agguihao, G.R. No. 104725, 10 March 1994, 231 SCRA 9, 21.
62 Supra note 59.

CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,

63

ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES; AND IMPOSING STIFFER

PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES.

AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS AMENDED, ENTITLED:
64

CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,

ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES; AND IMPOSING STIFFER
PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES.( 6 June 1997)

65 Rollo, pp. 71-72.

66 Id. at 72.

67 Id.

People v. Lumilan, 380 Phil. 130, 145 (2000); People v. Castillo, 382 Phil. 503 (2002); People v. Malinao,G.R.
68

No. 128148, 16 February 2004, 423 SCRA 34, 51.

69ART. 64. Rules for the application of penalties which contain three periods. - In cases in which the penalties
prescribed by law 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, the courts
shall observe for the application of the penalty the following rules, according to whether there are or are no
mitigating or aggravating circumstances:

xxx

3. When only an aggravating circumstance is present in the commission of the act, they shall impose the penalty
in its maximum period.

70People v. Bangcado, G.R. No. 132330, 28 November 2000, 346 SCRA 189, 213; People v. Panado, G.R. No.
133439, 26 December 2000, 348 SCRA 679, 691.

71 Nueva España v. People, G.R. No. 163351, 21 June 2005, 460 SCRA 547, 556.

72 The rule is that documentary evidence should be presented to substantiate a claim for loss of earning capacity.
By way of exception, damages therefore may be awarded despite the absence of documentary evidence if there
is testimony that the victim was either (1) self-employed, earning less than the minimum wage under current labor
laws, and judicial notice is taken of the fact that in the victim's line of work, no documentary evidence is available;
of (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws. Id. at 556.

73 People v. Manambay, G. R. No. 130684, 5 February 2004, 422 SCRA 73, 90.

74 Lamis v. Ong, G.R. No. 148923, 11 August 2005, 466 SCRA 510, 519-520.

75 ART. 51. Penalty to be imposed upon principals of attempted crime. - The penalty lower by two degrees than
that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a
felony.

76ART. 50. Penalty to be imposed upon principals of a frustrated crime. - The penalty next lower in degree than
that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony.

77ART. 249. Homicide. – Any person who, not falling within the provisions of article 246 shall kill another without
the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of
homicide and be punished by reclusion temporal.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 168827 April 13, 2007

BENJAMIN P. MARTINEZ, Petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision1 and the Resolution2 of the Court of Appeals (CA) in
CA-G.R. CR No. 25436, affirming with modification the trial court’s judgment finding Benjamin P. Martinez
guilty beyond reasonable doubt of frustrated homicide.

The Antecedents

Dean Dongui-is was a teacher at the Tubao National High School, La Union. Petitioner Benjamin Martinez was
the husband of Dean’s co-teacher, Lilibeth Martinez. Petitioner eked out a living as a tricycle driver.

On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the spouses Martinez in
the Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They alleged that in March 1998, petitioner, a
suitor of Elvisa Basallo, had been peddling false reports that Dean and Elvisa had illicit relations; he even told
Freda that Elvisa was Dean’s mistress. This led to a quarrel between Dean and Freda, and the latter was
hospitalized for her heart ailment. Dean requested Lilibeth to stop her husband from spreading lies, and she
replied that Elvisa had been her husband’s mistress. They prayed that they be awarded moral and exemplary
damages and litigation fees in the total amount of P100,000.00.3 The case was docketed as Civil Case No. 226.

For her part, Elvisa also filed a complaint against the spouses Martinez in the MCTC of Tubao for damages
anchored on Article 26 of the New Civil Code. She alleged that on several occasions, petitioner went to the
Shaltene Pawnshop and Pharmacy where she was employed and accused her of having an illicit affair with
Dean; on one occasion, he held her hand and forcibly pulled her outside, which caused her to scratch his face
and run after him with a knife; he also told her husband’s cousin, Willy Ordanza, that she had an illicit affair
with Dean; Willy, in turn, told her mother-in-law about it; petitioner relayed the same rumors to her co-worker,
Melba Dacanay, and his wife spread to people in the Municipality, including Ramil Basallo, her brother-in-law.
Elvisa also prayed for damages in the total amount of P100,000.00. The case was docketed as Civil Case No.
227.4

The spouses Martinez filed a motion to dismiss the complaint in Civil Case No. 226 which was heard in the
morning of February 3, 1999. The court denied the motion.

At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative (TCC) office to pick up the dividend
certificate of his wife who was a member of the cooperative. He left the building and walked to his car which
was parked in front. As he did, he read the dividend certificate of his wife. Dean was about a step away from
an L-300 van which was parked in front of the building when petitioner, armed with a bolo, suddenly emerged
from behind the vehicle and stabbed him on the left breast. Dean instantly moved backward and saw his
assailant. Dean fled to the bank office and was able to gain entry into the bank. Petitioner ran after him and
upon cornering him, tried to stab him again. Dean was able to parry the blow with his right hand, and the bolo
hit him on the right elbow. Dean fell to the floor and tried to stand up, but petitioner stabbed him anew on his
left breast.5 Dean managed to run to the counter which was partitioned by a glass. Unable to get inside the
counter, petitioner shouted at Dean: "Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You
kneel down because I will really kill you now this day)."6

Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about 100 meters away. He was informed
that a fight was going on in the bank. He rushed to the place on board the police car. When he arrived at the
scene, he saw Barangay Captain Rodolfo Oller and his son Nicky Oller.7 Nicky handed to him the bolo which
petitioner had used to stab Dean.8 He and Rodolfo brought petitioner to the police station. On the way, they
passed by the loading area of tricycles, about 40 meters away from the police station. Petitioner shouted:
"Sinaksak kon pare, sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him, he is just a
visitor so he should not act like a king here in Tubao)." SPO1 Sulatre placed Benjamin in jail. Benjamin kept on
shouting: "Napatay kon, napatay kon (I killed him, I killed him)."9

In the meantime, PO3 Valenzuela brought Dean to the Doña Gregoria Memorial Hospital in Agoo, La Union.
The victim was transferred to the Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean was
examined and operated on by Dr. Nathaniel Rimando, with the assistance of Dr. Darius Pariñas.10 Dean
sustained two stab wounds in the anterior chest, left, and a lacerated wound in the right elbow, forearm. Had it
not been for the blood clot that formed in the stab wound on the left ventricle that prevented the heart from
bleeding excessively, Dean would have died from profuse bleeding.11

On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre.12 However, he deferred swearing to the
truth of his statement before the Public Prosecution because SPO1 Sulatre was waiting for the permanent
medical certificate to be issued by the hospital. SPO1 Sulatre deferred the execution and submission of an
arrest report also pending the issuance of the medical certificate.

Instead of issuing a permanent medical certificate, the IRH issued on February 8, 1999 the following
Temporary Certificate:

TO WHOM IT MAY CONCERN:

According to hospital record, DEAN N. DONGUI-IS, 30 years old, male, married, a resident of Francia West,
Tubao, La Union, was examined/treated/confined in this hospital on/from February 3-20, 1999.

WITH THE FOLLOWING FINDINGS AND DIAGNOSIS:

– Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular Perforation;

OPERATIONS:

– Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots; Ventriculorrhaphy Decortication 2/11/99

and would need medical attendance for more than thirty (30) days barring complications.13

On March 10, 1999, SPO1 Sulatre filed a criminal complaint for frustrated murder against petitioner in the
MCTC.14 The MCTC opted not to act on the crime pending the arrest report and SPO1 Sulatre’s submission of
Dean’s sworn statement.

The IRH issued a medical certificate on February 28, 1999, stating that Dean’s wounds would need medical
attendance of more than 30 days.15 Barangay Captain Oller and SPO1 Sulatre executed an affidavit on
petitioner’s arrest.16 Dean had his affidavit sworn before the Public Prosecutor on March 30, 1999.

On September 13, 2000 the Provincial Prosecutor of La Union indicted Benjamin for frustrated murder before
the Regional Trial Court (RTC), Branch 31, of the same province. The accusatory portion of the Information
reads:
That on or about the 3rd day of February 1999, in the Municipality of Tubao, Province of La Union, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with
treachery and evident premeditation, being then armed with a small pointed bolo, did then and there willfully,
unlawfully and feloniously attack, assault and stab one DEAN DONGUI-IS y Manalo, hitting him on his left
breast and right elbow, and thereby inflicting on him injuries that would have produced the crime of Murder as
a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the
accused, mainly the timely rendition of medical assistance of on the said offended party, which prevented his
death, to his damage and prejudice.

CONTRARY TO LAW.17

On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of not guilty.

The Case for Petitioner

Petitioner declared that he merely defended himself against Dean’s assault. Dean was so jealous of him
because his mistress, Elvisa, had also been his mistress. Unknown to Dean, he had already terminated his
relation with Elvisa sometime in March 1997 when his wife Lilibeth discovered the illicit relationship.18 Dean
also suspected that he (petitioner) had been sending letters to his (Dean’s) wife relative to the illicit relationship
with Elvisa. Dean also suspected that he was responsible for the raid conducted by the Criminal Investigation
Service (CIS) of his house for possession of a gun.19 As a result, Dean filed a civil complaint against him for
damages, docketed as Civil Case No. 266. Before and after the filing of the civil case, Dean had hurled
invectives at him in the presence of Joselito Madriaga and other tricycle drivers.20 Dean even attempted to
sideswipe him with his car.21

Petitioner declared that the criminal charge against him was Dean’s concoction, and intended solely to harass
him. He narrated that he went to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had earlier
received a note from the cooperative to get the interest on her deposit.22 He parked his tricycle in front of the
building on the left side of the railing going to the entrance of the cooperative.23 Dean’s car was parked on the
right side of the railing.24 On his way, he met his 82-year-old uncle, Godofredo Sarmiento, who was also on his
way to the cooperative to update his passbook because he was intending to apply for a loan.25 He told
Godofredo that they could go to the TCC together. When they were about to pass through the entrance door,
Dean was about to exit from the cooperative. Dean thought that he was blocking his way and shouted
invectives at him and his uncle; Dean also spat on his breast and face; and threw a punch which he was able
to parry with his left elbow.26 Dean kept attacking him, forcing him to move backward through the railing and
towards his tricycle. Dean punched him again but he managed to parry the blow with his bolo which he took
from his tricycle. He stabbed Dean on his right elbow.27 He swung his bolo at Dean which forced the latter to
run back into the office. He entered the office and stood by the entrance door to see if Dean would get a
weapon. Dean continued hurling invectives at him but was later pacified by Patricio Alterado, an employee of
the cooperative.28 When Barangay Captain Oller arrived, he surrendered, along with his bolo.29 He never
boasted on the way to the police station that he had killed Dean.30

Godofredo partially corroborated the testimony of petitioner. He declared that Dean spat on the face of
petitioner.31 By the time Dean and petitioner reached the place where the latter’s tricycle was parked, he had
left; he was afraid of being involved.32 He did not report the incident to the police authorities.

Joselito Madriaga testified that he and petitioner were bosom buddies with a long history of friendship. Dean
had an axe to grind against petitioner because the two maintained a common mistress, Elvisa.33

The Trial Court’s Decision

On April 30, 2001, the trial court rendered judgment34 convicting petitioner of frustrated homicide. The fallo of
the decision reads –
WHEREFORE, this Court, after a consideration of the evidence adduced in this case, finds accused
BENJAMIN MARTINEZ guilty of the crime of Frustrated Homicide as principal. Neither aggravating
circumstance nor mitigating circumstance has been appreciated. Applying the Indeterminate Sentence Law,
accused Benjamin Martinez is sentenced to suffer the penalty of imprisonment ranging from FOUR (4) YEARS
OF PRISION CORRECTIONAL MEDIUM as minimum to EIGHT (8) YEARS and ONE (1) DAY OF PRISION
MAYOR MEDIUM as maximum. He is also ordered to pay DEAN DONGUI-IS the amount of ONE HUNDRED
FIFTY THOUSAND (P150,000.00) PESOS, broken into the following:

(a) Ninety-Two Thousand (P92,000.00) Pesos for medical expenses;

(b) Twenty-Six Thousand (P26,000.00) Pesos, representing his salaries for two (2) months when he
could not attend to teach due to his injuries;

(c) Twenty-Two Thousand (P22,000.00) Pesos as moral damages; and

(d) Ten Thousand (P10,000.00) Pesos as complainant’s attorney’s fees.

SO ORDERED.35

The trial court gave credence and full probative weight to the testimony of Dean, Dr. Rimando, SPO1 Sulatre,
and the documentary evidence of the prosecution. The court rejected petitioner’s twin defenses of denial and
self-defense. It declared that his version lacked strong corroboration, and that his witnesses (a close relative
and a friend) were biased.

Finding that the prosecution failed to prove the qualifying circumstances of treachery, the trial court convicted
petitioner of frustrated homicide. The court declared that the crime involved a "love triangle,"36 and considered
the protagonists’ history of personal animosity. There was no evident premeditation because Dean had been
"forewarned" of the attack.37

On appeal before the CA, petitioner raised the following issues:

I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT WRONGFULLY GAVE CREDENCE TO
THE FABRICATED CLAIMS OF THE SOLE WITNESS FOR THE PROSECUTION.

II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT WRONGFULLY GAVE CREDENCE TO
THE FALSE AND SPECIOUS TESTIMONY OF THE COMPLAINANT.

III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR
FRUSTRATED HOMICIDE FOR INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL
CERTIFICATE.

IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR
FRUSTRATED HOMICIDE WITHOUT ANY PROOF BEYOND REASONABLE DOUBT.

V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT DISREGARDED THE CONCLUSIVE
EVIDENCE FOR THE DEFENSE WHICH COMPLETELY NEGATED ANY PROOF FOR THE PROSECUTION
AND WHICH DEFINITELY WARRANTED THE ACQUITTAL OF THE ACCUSED.38

Maintaining his innocence, petitioner claimed that he had merely acted in self-defense when Dean insulted him,
spat on his face and assaulted him with fist blows on a mere suspicion that he (petitioner) was blocking Dean’s
way through the exit door of the cooperative.
 The Decision of the Court of Appeals

On February 21, 2005, the CA rendered judgment affirming the assailed decision of the RTC with modification.
The fallo reads –

WHEREFORE, the appealed Decision dated April 30, 2001 of the trial court is affirmed, subject to the
afforested modification of the minimum period of the sentence. Loss of earnings in the amount of P26,000.00
and attorney’s fees in the amount of P10,000.00 are deleted, and the award of actual damages is increased
to P92,715.68.

SO ORDERED.39

The CA ruled that the case is more of a "retaliation" rather than a case of self-defense. It declared that Dean
sustained two fatal stab wounds in his left chest, a fact which belied petitioner’s defense and confirmed the
prosecution’s theory that he purposely and vigorously attacked the victim. The CA ruled that when an unlawful
aggression which has begun no longer exists, the one making the defense has no more right to kill or even
wound the aggressor. The appellate court pointed out that in the case before it, the supposed unlawful
aggression of Dean ceased from the moment he retreated inside the cooperative building; there was no need
for petitioner to follow Dean inside the building and stab him with his bolo. Petitioner should have simply stood
his ground and walked away.

In discounting the qualifying circumstances of treachery and evident premeditation, the CA simply adverted to
the stipulation of facts contained in the Pre-Trial Order dated December 20, 2000 issued by the RTC, stating
"[t]hat the accused stabbed the private complainant when the latter assaulted and boxed him
(accused)."40 Petitioner’s plea of voluntary surrender was not appreciated in his favor. However, the appellate
court modified the minimum sentence imposed by the trial court to four (4) years and two (2) months of prision
correctional, as minimum.

As to damages, the CA deleted the RTC’s award of loss of earning capacity and attorney fees, holding that
they lack factual and legal basis. It, however, increased the award of actual damages from P92,000.00
to P92,715.68 reasoning that latter amount was duly receipted. The CA denied the appellant’s motion for
reconsideration.41

Before this Court, petitioner assigns the following errors allegedly committed by the CA –

I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY AROSE FROM
MISAPPREHENSION OF FACTS THAT PROVE THAT THE PROCEEDINGS AND THE FINDINGS MADE IN
THE DECISION OF THE TRIAL COURT AS WELL AS IN THE ASSAILED DECISION ITSELF, WERE BASED
ON A FALSE CHARGE WHICH IS PATENTLY FABRICATED BY A POLICE INVESTIGATOR AND WHICH
COMPRISES MALICIOUS PROSECUTION.

II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY ARE BASED ON
THE FABRICATED STATEMENT AS WELL AS ON THE SOLE, SELF-SERVING, CONTRADICTORY AND
UNCORROBORATED TESTIMONY OF THE COMPLAINANT, WHICH ARE MANIFESTLY CONCOCTED
AND CANNOT ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.

III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T] ASIDE, AS THERE IS TOTAL
ABSENCE OF EVIDENCE TO PROVE THE VACUOS CHARGE AS WELL AS THE SAID DECISION AND
RESOLUTION, FOR WHICH REASON THE GUILT OF THE ACCUSED WAS NOT DULY PROVED BEYOND
REASONABLE DOUBT[.]

IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE SAME WERE
RENDERED IN ALL GRAVE ABUSE OF DISCRETION AND IN TOTAL DISREGARD OF THE COMPETENT
AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH NEGATE ANY REASONABLE DOUBT ON
THE GUILT OF THE ACCUSED.
V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE INFERENCES MADE
ON THE UNDISPUTED FACTS ARE CONTRARY TO LAW AND JURISPRUDENCE AND CANNOT JUSTIFY
ANY FINDING OF ANY PROOF BEYOND REASONABLE DOUBT.42

Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a fabrication because the latter never
conducted a formal investigation of the stabbing incident or of any witness to the incident. The police officer
filed the criminal complaint against petitioner on the basis of a sworn statement by Dean which was taken only
on March 10, 1999, long after the criminal complaint was filed in the MCTC. Worse, when he testified on cross-
examination, Dean admitted that he did not see the questions prepared by SPO1 Sulatre at the hospital, nor
his answers to the policeman’s questions. The affidavit dated March 10, 1999 was not typewritten in the
hospital, and he was not present when the affidavit was typewritten in the police station. Thus, the testimony of
the victim was self-serving and uncorroborated, tailored solely to support the charge filed by SPO1 Sulatre.

In its comment on the petition, respondent, through the Office of the Solicitor General (OSG), avers that the
issues raised by petitioner are factual, hence, inappropriate in a petition for review on certiorari in this Court.

The OSG maintains that the Revised Rules of Criminal Procedure does not require that the affidavit of the
offended party or the witnesses to the crime charged be appended to the criminal complaint filed in court.
Moreover, the issue of the validity of the criminal complaint in the MCTC had became moot and academic after
the Information was filed in the trial court, and when petitioner was arraigned, assisted by counsel, and entered
a plea of not guilty.

It insists that Dean’s testimony, by itself, is sufficient to warrant the conviction of petitioner for frustrated
homicide. Petitioner’s conviction may be anchored on Dean’s testimony since the trial court found it credible
and entitled to full probative weight. Petitioner failed to prove his plea of self-defense by clear and convincing
evidence.

The Court’s Decision

The petition is denied for lack of merit.

Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure43 provide:

Sec. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits
of the complainant and his witnesses, as well as other supporting documents to establish probable
cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary public, each of
whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if
he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching
to it a copy of the complaint and its supporting affidavits and documents.

It bears stressing that the officer conducting the preliminary investigation has to determine whether to dismiss
the complaint outright based on the averments of the complaint and the appendages thereof if it finds no
ground to continue with the investigation. If he finds ground to continue with the investigation of the accused, a
subpoena should be issued to the accused, appending thereto a copy of the complaint and the supporting
affidavits. Unless the affidavits of the witnesses named in the complaint and supporting documents are
appended to the complaint, the investigating officer may not be able to determine whether to dismiss the
complaint outright or to conduct an investigation and issue a subpoena to the accused.44
We agree with petitioner that the criminal complaint filed by SPO1 Sulatre with the MCTC on March 10, 1999
was defective. As gleaned from the RTC records, the criminal complaint was not accompanied by any medical
certificate showing the nature and number of wounds sustained by the victim, the affidavits of any of the
witnesses listed at the bottom of the criminal complaint (particularly the victim himself), and the arrest report of
SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son Nicky.

The MCTC had the option not to act one way or the other on the criminal complaint of SPO1 Sulatre because
the latter failed to comply with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure; or to
order SPO1 Sulatre to comply with the aforequoted rule; or to dismiss the complaint without prejudice to its
refiling with the requisite documents. However, the MCTC opted not to act on the complaint until after SPO1
Sulatre shall have submitted the requisite affidavits/medical certificate/arrest report. When SPO1 Sulatre filed
with the MCTC, on March 10, 1999, the permanent medical certificate issued by the IRH, the affidavit of Dean
and his and Brgy. Capt. Oller’s affidavit of arrest of petitioner, the MCTC forthwith issued a subpoena to
petitioner appending thereto the said medical certificate, affidavit of Dean and the affidavit of arrest of SPO1
Sulatre.45 Hence, SPO1 Sulatre had complied with Section 3(a) and (b), Rule 112 of the Revised Rules of
Criminal Procedure.

Moreover, petitioner submitted his counter-affidavit without any protest. Neither did he assail the validity of the
criminal complaint or the tardy submission by SPO1 Sulatre of the medical certificate, the affidavit of Dean and
the affidavit of arrest of SPO1 Sulatre. Aside from this, petitioner was arraigned in the RTC, assisted by
counsel, and entered a plea of not guilty.

On the second issue, the rulings of the trial court and the appellate court are correct. Whether or not petitioner
acted in self-defense whether complete or incomplete is a question of fact,46 the well-entrenched rule is that
findings of fact of the trial court in the ascertainment of the credibility of witnesses and the probative weight of
the evidence on record affirmed, on appeal, by the CA are accorded high respect, if not conclusive effect, by
the Court and in the absence of any justifiable reason to deviate from the said findings.47

In this case, the trial court gave no credence and probative weight to the evidence of petitioner to prove that he
acted in self-defense, complete or incomplete. Petitioner failed to establish that the trial court and the appellate
court misconstrued, misappropriated or ignored facts and circumstances of substance which, if considered,
would warrant a modification or reversal of the decision of the CA that petitioner failed to establish clear and
convincing evidence that he acted in self-defense, complete or incomplete.

Like alibi, petitioner’s claim of self-defense is weak; it is also settled that self-defense is easy to fabricate and
difficult to disprove. Such a plea is both a confession and avoidance.48 One who invokes self-defense,
complete or incomplete, thereby admits having killed the victim by inflicting injuries on him. The burden of
evidence is shifted on the accused to prove the confluence of the essential elements for the defense as
provided in Article 11, paragraph 1 of the Revised Penal Code:

x x x (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3)
lack of sufficient provocation on the part of the person defending himself. x x x49

The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution
because even if the evidence of the prosecution is weak, the same can no longer be disbelieved.50 The
accused cannot escape conviction if he fails to prove the essential elements of complete self-defense.

In Garcia v. People,51 the Court defined unlawful aggression:

x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent danger on the life and
limb of a person – a mere threatening or intimidating attitude is not sufficient. There must be actual physical
force or a threat to inflict physical injury. In case of a threat, it must be offensive and positively strong so as to
display a real, not imagined, intent to cause injury. Aggression, if not continuous, does not constitute,
aggression warranting self-defense.52
Aggression, if not continuous, does not constitute aggression warranting self-defense.53 When unlawful
aggression ceases, the defender no longer has any justification to kill or wound the original aggressor. The
assailant is no longer acting in self-defense but in retaliation against the original aggressor.54

There can be no self-defense, complete or incomplete, unless the accused proves unlawful aggression on the
part of the victim.55 Unlawful aggression is a sudden and unexpected attack or an imminent danger thereof,
and not merely a threatening or an intimidating attitude.56

Petitioner failed to discharge his burden.

First. Petitioner failed to surrender himself to the responding authorities who arrived at the situs criminis,
as well as the bolo he used in stabbing the victim. One who acted in self-defense is expected to
surrender, not only himself, but also the weapon he used to kill or inflict physical injuries on the victim.57

Second. The victim sustained three stab wounds on different parts of his body. Two were fatal stab
wounds at his left chest. The presence of a large number of wounds on the part of the victim, their
nature and location disprove self-defense and instead indicate a determined effort to kill the victim.58

Third. Petitioner testified that he was punched by the victim. However, there is not a scintilla of
evidence to show that petitioner suffered even a scratch as a result of the alleged fist blows.

Neither can the RTC nor the CA be faulted for giving credence to the testimony of SPO1 Salutre. No evidence
was adduced by the defense to show that he harbored any ill-motive against petitioner to charge him with such
a crime. Absent any proof of improper motive, the prosecution witness who is law enforcer is presumed to have
regularly performed his duty in arresting and charging petitioner.59 His testimony is thus entitled to full faith and
credit. Moreover, the conviction of petitioner was not based solely on the testimony of the SPO1 Salutre. The
unimpeached testimony of Dean categorically established the crime; this was corroborated by the testimony of
Dr. Nathaniel Rimando.

Petitioner’s argument that he should be acquitted because the criminal complaint against him was not
supported by the victim’s sworn statement or by an affidavit of any witness is totally untenable. This issue
should have been raised during the preliminary investigation. It is much too late in the day to complain about
this issue after a judgment of conviction has been rendered against him.

Contrary to petitioner’s stance, the testimonies of his corroborating witnesses are unimpressive. For one,
Godofredo’s testimony was limited only to the alleged fact that happened outside of the cooperative building.
He himself admitted that when the protagonists started fighting each other, for fear for his life, he hurriedly
flagged and boarded a tricycle which revved up to the highway; it was from there that he saw petitioner
slumped on his tricycle. In other words, he did not witness what transpired thereafter or how the fight ended.

Joselito’s testimony did not fare any better. It was given neither credence nor weight by the trial court. And
even if it had been proved that the victim was rabid against petitioner, such evidence would only have
established a probability that he had indeed started an unlawful assault on petitioner. This probability cannot,
however, overcome the victim’s positive statement that petitioner waylaid and assaulted him without any
provocation. The theory that Dean may have started the fight since he had a score to settle against petitioner is
flimsy, at best. Furthermore, Joselito admitted that he was petitioner’s best friend; hence, his bias cannot be
discounted.

The Crime Committed by the Petitioner

Petitioner next argues that should he be convicted of any crime, it should be of less serious physical injuries
only, absence the element of intent to kill. He advances the argument that the single wound suffered by the
victim was not life threatening and that the latter was transferred to undergo operation in another hospital only
because the medical staff where he was first rushed bungled their job. He makes much of the fact that Dr.
Darius R. Pariñas who issued the Medical Certificate never testified for the prosecution.
Again, the Court is not swayed.1a\^/phi1.net

If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated
physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or
frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by
evidence of the following: (a) motive; (b) the nature or number of weapons used in the commission of the
crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed;
and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.60

Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies petitioner’s pose.

To begin with, as between petitioner and the victim, the former had more hatred to harbor arising from the fact
that the victim filed a lawsuit against him and his wife. Petitioner thus had more motive to do harm than the
victim. By his own account, he and Dean had a history of personal animosity.

Secondly, petitioner was armed with a deadly 14½-inch bolo.

Thirdly, if it were true that petitioner stabbed Dean merely to defend himself, it defies reason why he had to
stab the victim three times. Petitioner’s claim that Dean suffered only a single non-life threatening wound is
misleading. Dr. Rimando, who attended to and operated on Dean, testified that the victim sustained three (3)
stab wounds, two (2) of which penetrated his heart and lung, causing massive blood clotting necessitating
operation; the other lacerated Dean’s his right elbow. The presence of these wounds, their location and their
seriousness would not only negate self-defense; they likewise indicate a determined effort to kill.61 Moreover,
physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses.62

Neither does the non-presentation of Dr. Darius R. Pariñas, the doctor who signed the medical certificate,
would dent a bit the evidence for the prosecution. This is so because Dr. Pariñas, who assisted Dr. Rimaldo
during the operation of Dean, would merely corroborate Dr. Rimaldo’s testimony. As such, his testimony is not
indispensable.

Fourthly, from the manner the crime was committed, there can hardly be any doubt that intent to kill was
present. It has been clearly established that petitioner ambushed Dean and struck him with a bolo. Dean was
defenseless and unarmed, while petitioner was deadly armed.1ªvvphi1.nét

Lastly, the words of the petitioner while he was assaulting Dean were most revealing:

Atty. Atitiw:

Q : When you were in the counter, what was accused Benjamin doing?

A : When I was inside the counter and he’s outside and between us is a glass and there he shouting at
me telling in Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA PATAYEN KA TATTA NGA
ALDAWEN "You kneel down because I will really kill you now."63

xxxx

Atty. Atitiw:

Q : While passing through the loading area of the tricycle, do you remember anything that transpired
there at the loading area?

A : Yes, Sir.

Q : What is that, Mr. Witness?

 A : While Benjamin Martinez, Barangay Captain Oller and I were walking proceeding to our Police
Station and when we were near the area, at the loading area if the tricycle, Benjamin Martinez shouted
and I quote: "SINAKSAK KON PARE, SANGSANGAILI LAENG ISUNA SAAN NGA ISUNA TI AGARI
DITOY TUBAO," that was the utterance, Sir.64

xxxx

Q : After bringing him to the Police Station, what did you do next?

A : We put him in jail, Sir.

Q : And while in jail do you remember whether accused Benjamin Martinez did anything while in jail?

A : Yes, Sir.

Q : What is that, Mr. Witness?

A : He kept on shouting words, Sir.

Q : What are those words if you can remember?

A : He kept on shouting "NAPATAY KON, NAPATAY KON," Sir.65

Anent the allegation of negligence on the part of the medical staff of Doña Gregoria Memorial Hospital where
Dean was rushed, suffice it to say that this is a new theory being foisted by petitioner. It was never raised in the
two courts below and thus it will not be entertained here. At any rate, this allegation finds no support in the
records of the case.

It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all the acts of execution
but the crime was not consummated because of the timely medical intervention applied on the victim.

An appeal in a criminal case opens the entire case for review on any question including one not raised by the
parties.66 In this regard, we find ample evidence to establish treachery. The CA’s advertence to the stipulation
of facts contained in the Pre-Trial Order dated December 20, 200067 is misplaced. This alleged stipulation was
stricken off the record on motion of the prosecution on the ground that no stipulation of such fact was made.68

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 specially to insure its execution without risk
to himself arising from the defense which the offended party might take.69

In the present case, the prosecution had met the requisites for alevosia to be appreciated: (1) at the time of the
attack the victim was not in a position to defend himself; and (2) that the offender consciously adopted the
particular means, method, or form of the attack employed by him.70 Dean lived to tell about the swiftness of the
attempt against his life:

Q : After getting the dividend certificate where did you proceed next?

A : I went out from the bank, sir. I was able to go to school.

Q : Where you able to go to the school?

A : No, Sir.

Q : Why were you not able to reach the school?

 A : Because I was suddenly stabbed by Benjamin Martinez.

Q : Where did Benjamin Martinez stab you?

A : In front of the bank, Sir.

Q : And how did Benjamin Martinez stab you?

A : I was about to go to my car, Sir. I was reading the dividend certificate that I got from the bank but
when I was about one step away from the back of the L300 van that was parked in front of the bank, I
was suddenly stabbed by him.

Q : Where was Benjamin Martinez at that time when he was stabbed you?

A : Probably he was hiding at the back of the L300 van, Sir.71

When Dean was attacked he was unarmed. He had just exited the cooperative building and had no inkling that
he would be waylaid as he made his way towards his car. Upon the other hand, petitioner was armed with a
deadly 14½-inch bolo. The attacked on Dean was swift and unannounced; undeniably, petitioner’s attack was
treacherous.

Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised
Penal Code which reads:

A felony is consummated when all the elements necessary for its execution and accomplishment are present;
and it is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.

The essential elements of a frustrated felony are as follows:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;

3. But the felony is not produced;

4. By reason of causes independent of the will of the perpetrator.72

A crime is frustrated when the offender has performed all the acts of execution which should result in the
consummation of the crime. The offender has passed the subjective phase in the commission of the crime.
Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective
phase. He did all that is necessary to consummate the crime. However, the crime was not consummated by
reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is
said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause
the death of the victim barring medical intervention or attendance.73

The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion
temporal.74 The latter penalty has a range of 12 years and 1 day to 20 years. Applying the Indeterminate
Sentence Law, the maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty
for the crime, taking into account any modifying circumstances in its commission. The minimum of the
indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than
reclusion temporal. Since there is no modifying circumstance in the commission of frustrated murder, the
appellants should be meted an indeterminate penalty of from nine (9) years and four (4) months of prision
mayor in its medium period as minimum, to seventeen (17) years and four (4) months of reclusion temporal in
its medium period, as maximum.

Petitioner, likewise, insists that he voluntarily surrendered to Barangay Captain Rodolfo Oller. He faults the trial
and appellate courts for relying on the prosecution’s Affidavit of Arrest, arguing that the same is inadmissible
as hearsay, the affiants not having testified to affirm their declarations.

For voluntary surrender to be appreciated, the following requisites should be present: (1) the offender has not
been actually arrested; (2) the offender surrendered himself to a person in authority or the latter’s agent; and
(3) the surrender was voluntary. The surrender must be spontaneous, made in such a manner that it shows the
interest of the accused to surrender unconditionally to the authorities, either because he acknowledged his
guilt or he wishes to save them the trouble and expenses that would necessarily be incurred in the search and
capture.75

In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily surrender but was forcibly
apprehended by Barangay Captain Oller, and thereafter turned over to him. Petitioner however insists that said
testimony is hearsay inasmuch as SPO1 Salutre was not the person who actually arrested him. We disagree.
During SPO1 Salutre’s testimony, petitioner failed to object to the questions propounded to SPO1 Salutre
regarding his apprehension. Consequently, he cannot now claim that SPO1 Salutre’s testimony on the arrest
was hearsay. Petitioner’s assertion of having voluntarily surrendered to Barangay Captain Oller was not
corroborated by any competent and reliable evidence. Considering the damning averments in the Affidavit of
Arrest, petitioner should have at least called Barangay Captain Oller to the witness stand just to shed light on
his alleged voluntary surrender.

We agree with the trial court that the qualifying circumstance of evident premeditation has not been adequately
shown. To properly appreciate the same, it is necessary to establish: (1) the time when the offender
determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to this determination;
and (3) a sufficient lapse of time between the determination and the execution to allow him to reflect upon the
consequences of his act.76 Since there is dearth of evidence on when petitioner first conceived of killing Dean
and that he was afforded sufficient time to reflect on the consequences of his contemplated crime before its
final execution, the circumstance of evident premeditation cannot be appreciated.

Civil Liabilities of Petitioner

The trial court awarded Dean the amount of P92,000.00 representing his hospitalization and medical expenses
which was increased by the CA to P92,715.68. To be entitled to actual damages, it is necessary to prove the
actual amount of loss with a reasonable degree of certainty, premised upon competent proof and the best
evidence obtainable to the injured party.77 For Dean’s hospitalization and medical expenses, the receipts
submitted to support said claim amounted only to P56,275.48; hence, Dean is entitled only to the said amount.

The Court awards exemplary damages in the amount of P25,000.00, inasmuch as the qualifying circumstance
of treachery attended the commission of the crime. In People v. Catubig,78 we emphasized that insofar as the
civil aspect of the crime is concerned, exemplary damages in the amount of P25,000.00 is recoverable if there
is present an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.

The CA is correct in deleting Dean’s claim for lost salary while recuperating, since this was not supported by
evidence. However, the trial court’s award of P10,000.00 as attorney’s fees should be reinstated, Dean having
hired a private prosecutor to prosecute his case.

Lastly, for the suffering Dean endured from petitioner’s felonious act, the award of P22,000.00 moral damages
is increased to P25,000.00, in keeping with the latest jurisprudence.79

IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby AFFIRMED WITH MODIFICATION.
Petitioner is hereby found guilty beyond reasonable doubt of Frustrated Murder under Article 248 in relation to
Article 6, first paragraph of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty
from nine (9) years and four (4) months of prision mayor in its medium period, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal in its medium period, as maximum.

Petitioner is ordered to pay Dean Dongui-is the amount of P56,275.48 as actual damages; P25,000 as moral
damages; P25,000.00 as exemplary damages; and P10,000.00 as attorney’s fees.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1 Penned by Associate Justice Fernanda Lampas-Peralta, with Presiding Justice Ruben T. Reyes and Associate
Justice Josefina Guevara-Salonga, concurring; rollo, pp. 47-64.
2 Rollo, pp. 66-67.
3 Exhibit "A."
4 Exhibit "B."
5 TSN, January 15, 2001, pp. 11-15.
6 Id. at 18.
7 TSN, December 13, 2000, pp. 6-7.
8 Exhibit "F-1."
9 TSN, December 13, 2000, pp. 9-10.
10 TSN, January 15, 2001, p. 19.
11 TSN, January 29, 2001, p. 23.
12 Exhibit "C."
13 Records, p. 2.
14 Id. at 1. 15 Id. at 2.
16 Exhibit "E."
17 Records, p. 44.
18 TSN, March 26, 2001, pp. 4-5.
19 Id. at 12. 20 Id. at 8. 21 Id. at 9. 22 Id. at 13-14.
23 Exhibit "1-A."
24 Exhibit "1-C."
25 TSN, February 19, 2001, pp. 2-4.
26 TSN, March 26, 2001, p. 17.
27 Id. at 19. 28 Id. at 21-22. 29 Id. at 22-23. 30 Id. at 32-33.
31 TSN, February 19, 2001, p. 9.
32 Id. at 12.
33 TSN, March 8, 2001, pp. 4-16.
34 Penned by Executive Judge Clifton U. Ganay; records, pp. 224-293.
35 Records, pp. 292-293.
36 Id. at 286.
37 Id. at 287.
38 Rollo, p. 52.
39 Id. at 63-64. 40 Id. at 50. 41 Id. at 67. 42 Id. at 17.
43 As amended by the Court’s Resolution in A.M. No. 05-8-26-SC dated August 30, 2006.
44 Section 3(b), Rule 112, Revised Rules of Criminal Procedure.
45 Records, p. 9.
46 People of the Philippines v. De los Reyes, G.R. 140680, May 28, 2004, 430 SCRA 166; Senoja v. People of the

Philippines, G.R. No. 160341, October 19, 2004, 440 SCRA 695; Garcia v. People of the Philippines, G.R. No.
144699, March 10, 2004, 425 SCRA 221, 229.
47 Rugas v. People of the Philippines, G.R. No. 147789, January 14, 2004, 419 SCRA 399, 406-407; People v. De

los Reyes, supra note 46, at 173.

48 Garcia v. People of the Philippines, supra note 46, at 228.
49 People of the Philippines v. De los Reyes, supra note 46, at 172.
50 Senoja v. People of the Philippines, supra note 46, at 704-705.
51 Supra note 46.
52 Id. at 229.
53 People of the Philippines v. Saul, 423 Phil. 924, 934 (2001).
54 People of the Philippines v. Tagana, G.R. No. 133027, March 4, 2004, 424 SCRA 620, 635.
55 People of the Philippines v. Gumayao, 460 Phil. 735, 746 (2003).
56 People of the Philippines v. Dala, 460 Phil. 727, 732 (2003).
57 People of the Philippines v. Marcelo, supra note 55.
58 People of the Philippines v. Rubiso, 447 Phil. 374, 382 (2003).
59 People of the Philippines v. Fernandez, G.R. No. 90019, December 8, 1993, 228 SCRA 301, 308-309.
60 People of the Philippines v. Caballero, 448 Phil. 514, 534 (2003).
61 Santos v. Court of Appeals, G.R. No. 126624, November 11, 2003, 415 SCRA 384, 399.
62 Garcia v. People of the Philippines, supra note 48, at 233.
63 TSN, January 15, 2001, p. 18.
64 TSN, December 13, 2000, pp. 7-8.
65 Id. at 9-10.
66 People of the Philippines v. Estoya, G.R. No. 153538, May 19, 2004, 428 SCRA 544, 560.
67 Records, p. 155.
68 Id. at 199.
69 Revised Penal Code, Art. 14, par. 16.
70 People of the Philippines v. Escote, Jr., 448 Phil. 749, 786 (2003).
71 TSN, January 15, 2001, p. 12.
72 People of the Philippines v. Caballero, supra note 61, at 533.
73 Id. at 534.
74 Revised Penal Code, Art. 61, par. 2.
75 People of the Philippines v. Cariño, G.R. No. 131117, June 15, 2004, 432 SCRA 57, 83.
76 People of the Philippines v. Torpio, G.R. No. 138984, June 4, 2004, 431 SCRA 9, 16.
77 People of the Philippines v. Demante, G.R. No. 132310, January 20, 2004, 420 SCRA 229, 247.
78 416 Phil. 102 (2001).
79 People of the Philippines v. Caballero, supra note 60, at 538.

EN BANC 
ARISTOTEL VALENZUELA y G. R. No. 160188 
NATIVIDAD, 
Petitioner, Present: 
  
PUNO, C.J., 
QUISUMBING, 
SANTIAGO, 
‐         versus ‐ GUTIERREZ, 
CARPIO, 
MARTINEZ, 
CORONA, 
CARPIO MORALES, 
AZCUNA, 
TINGA, 
CHICO‐NAZARIO, 
GARCIA, 
VELASCO, and 
PEOPLE OF THE PHILIPPINES NACHURA, JJ. 
and HON. COURT OF APPEALS, 
Respondents. 
Promulgated: 
June 21, 2007 
x‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐x 

D E C I S I O N
TINGA, J.: 

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

As  far  as  can  be  told,[2] the  last  time  this  Court  extensively  considered  whether  an  accused  was  guilty  of 
frustrated  or  consummated theft was  in  1918,  in People  v.  Adiao.[3] A  more  cursory  treatment  of  the  question  was 
followed  in  1929,  in People  v.  Sobrevilla,[4] and  in  1984,  in Empelis  v.  IAC.[5] This  petition  now  gives  occasion  for  us  to 
finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code. 

I. 

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

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

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

After  pleading  not  guilty  on  arraignment,  at  the  trial,  petitioner  and  Calderon  both  claimed  having  been  innocent 
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago 
and his  fellow security  guards after  a  commotion and brought to  the Baler PNP Station. Calderon alleged that  on the 
afternoon  of  the  incident,  he  was  at  the  Super  Sale  Club  to  withdraw  from  his  ATM  account,  accompanied  by  his 
neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside 
the  supermarket.  It  was  while they were eating that they heard thegunshot fired  by 
Lago, leading them to head out of the building to check what was transpiring. As they were outside, they were suddenly 
grabbed  by  a  security  guard,  thus  commencing  their  detention.[12] Meanwhile,  petitioner  testified  during  trial  that  he 
and  his  cousin,  a  Gregorio  Valenzuela,[13] had  been  at  the  parking  lot,  walking  beside  the  nearby  BLISS  complex  and 
headed to ride a tricycle going to Pag‐asa, when they saw the security guard Lago fire a shot. The gunshot caused him 
and  the  other  people  at  the  scene  to  start  running,  at  which  point  he  was  apprehended  by  Lago  and  brought  to  the 
security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the 
others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, 
but  he  was  detained  overnight,  and  eventually  brought  to  the  prosecutors  office  where  he  was  charged  with 
theft.[14] During petitioners cross‐examination, he admitted that he had been employed as a bundler of GMS Marketing, 
assigned at the supermarket though not at SM.[15] 

In  a  Decision[16] promulgated  on 1  February  2000,  the  Regional  Trial  Court  (RTC)  of Quezon  City,  Branch  90,  convicted 
both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term 
of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17] The RTC found 
credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of 
the accused as perpetrators of the crime. 

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

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual 
participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As 
such,  there  is  no  cause  for  the  Court  to  consider  a  factual  scenario  other  than  that  presented  by  the  prosecution,  as 
affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft 
should be deemed as consummated or merely frustrated. 

II.  

In arguing that  he should  only be convicted  of frustrated  theft,  petitioner  cites[26] two decisions  rendered many years 

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

It  is  not  necessary  to  fault  the  Court  of  Appeals  for  giving  short  shrift  to  the Dio and Flores rulings  since  they 
have  not  yet  been  expressly adopted as  precedents  by  this  Court.  For  whatever  reasons,  the  occasion  to  define  or 
debunk  the  crime  of  frustrated  theft  has  not  come  to  pass  before  us.  Yet  despite  the  silence  on  our 
part, Dio and Flores have  attained  a  level  of  renown  reached  by  very  few  other  appellate  court  rulings.  They  are 
comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in criminal law classes as 
textbook examples of frustrated crimes or even as definitive of frustrated theft. 

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

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

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

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

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

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

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

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

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

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but 
without violence against or intimidation of persons nor force upon things, shall take personal property 
of another without the latters consent. 

Theft is likewise committed by:

1. Any  person  who,  having  found  lost  property,  shall  fail  to  deliver  the  same  to  the  local 
authorities or to its owner; 

2. Any person who, after having maliciously damaged the property of another, shall remove
or make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fish upon the
same or shall gather cereals, or other forest or farm products.

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

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

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

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

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

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

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

U.S.  v.  Adiao[53] apparently  supports  that  notion.  Therein,  a  customs  inspector  was  charged  with  theft  after  he 
abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. 
At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under 
observation  during  the  entire  transaction.[54] Based  apparently  on  those  two  circumstances,  the  trial  court  had  found 
him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding 
instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft 
are present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the 
Supreme Court of Spain, the discussion of which we replicate below: 

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

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

The defendant penetrated into a room of a certain house and by means of a key opened up a 
case, and from the case took a small box, which was also opened with a key, from which in turn he took 
a  purse  containing  461  reales  and  20  centimos,  and  then  he  placed  the  money  over  the  cover  of  the 
case; just at this moment he was caught by two guards who were stationed in another room near‐by. 
The  court  considered  this  as  consummated  robbery,  and  said:  "[x  x  x]  The  accused  [x  x  x]  having 
materially taken possession of the money from the moment he took it from the place where it had been, 
and  having  taken  it  with  his  hands  with  intent  to  appropriate  the  same,  he  executed  all  the  acts 
necessary to constitute the crime which was thereby produced; only the act of making use of the thing 
having been frustrated, which, however, does not go to make the elements of the consummated crime." 
(Decision of the Supreme Court of Spain, June 13, 1882.)[56] 

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

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

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket‐book, 
and that determines the crime of theft. If the pocket‐book was afterwards recovered, such recovery 
does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in 
taking the pocket‐book.[59] 

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

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

Dio was  decided  by  the  Court  of  Appeals  in  1949,  some  31  years  after Adiao and  15  years  before Flores.  The 
accused  therein,  a  driver  employed  by  the  United  States  Army,  had  driven  his  truck  into  the  port  area  of 
the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, 
accused  drove  away  his  truck  from  the  Port,  but  as  he  was  approaching  a  checkpoint  of  the  Military  Police,  he  was 
stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended 
that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and 
retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the 
Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed. 

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

Considerando  que  para  que  el  apoderamiento  de  la  cosa  sustraida  sea  determinate  de  la 
consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la 
libre  disposicion  de  aquella,  siquiera  sea  mas  o  menos  momentaneamente,  pues  de  otra  suerte,  dado  el 
concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin 
materializar demasiado el acto de tomar la cosa ajena.[62] 

  

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

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of 
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by 
the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, 
bore  no  substantial  variance  between  the  circumstances  [herein]  and  in  [Dio].[64]Such  conclusion  is  borne  out  by  the 
facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt 
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal 
of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of 
the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually 
contained  other  merchandise  as  well.[65] The  accused  was  prosecuted  for  theft  qualified  by  abuse  of  confidence,  and 
found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that 
he  was  guilty  only  of  attempted  theft,  but  the  appellate  court  pointed  out  that  there  was  no  intervening  act  of 
spontaneous  desistance  on  the  part  of  the  accused  that  literally  frustrated  the  theft.  However,  the  Court  of  Appeals, 
explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.  

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

Synthesis of the Dio and Flores rulings  is in  order. The determinative characteristic as to whether the crime of 

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

In  his  commentaries,  Chief  Justice  Aquino  makes  the  following  pointed  observation  on  the  import  of 
the Dio ruling: 

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

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

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

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

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

IV. 

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. 
As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision inEmpelis v. IAC.[78] 
 As  narrated  in Empelis,  the  owner  of  a  coconut  plantation  had  espied  four  (4)  persons  in  the  premises  of  his 
plantation,  in  the  act  of  gathering  and  tying  some  coconuts.  The  accused  were  surprised  by  the  owner  within  the 
plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the 
coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, 
the  accused  were  convicted  of  qualified  theft,  and  the  issue  they  raised  on  appeal  was  that  they  were  guilty  only  of 
simple  theft.  The  Court  affirmed  that  the  theft  was  qualified,  following  Article  310  of  the  Revised  Penal  Code,[79] but 
further held that the accused were guilty only of frustrated qualified theft. 

It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated 
was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only 
two sentences, which we reproduce in full: 

However,  the  crime  committed  is  only  frustrated  qualified  theft  because  petitioners  were  not 
able to perform all the acts of execution which should have produced the felony as a consequence. They 
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.[80] 

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

Empelis held  that  the  crime  was  only  frustrated  because  the  actors  were not  able  to  perform  all  the  acts  of 
execution which should have produced the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, 
the  crime  is  frustrated when  the  offender  performs  all  the  acts  of  execution, though  not  producing  the  felony  as  a 
result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non‐
performance was by reason of some cause or accident other than  spontaneous 
desistance. Empelis concludes that the crime was  frustrated  because  not  all  of  the  acts  of  execution  were  performed 
due to the timely arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit 
the  conclusion  that  the  crime  was  only  attempted,  especially  given that  the  acts  were  not  performed  because  of  the 
timely arrival of the owner, and not because of spontaneous desistance by the offenders. 

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

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

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

V. 

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

Son reos de hurto: 

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman 
las cosas muebles ajenas sin la voluntad de su dueo. 

2.      Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de 
lucro. 

3.      Los  daadores  que  sustrajeren  o  utilizaren  los  frutos  u  objeto  del  dao  causado,  salvo  los  casos 
previstos  en  los  artίculos  606,  nm.  1.0;  607,  nms,  1.0,  2.0  y  3.0;  608,  nm.  1.0;  611;  613;  Segundo 
prrafo del 617 y 618. 

It  was  under  the  ambit  of  the  1870 Codigo  Penal that  the  aforecited  Spanish  Supreme  Court  decisions  were 
handed  down.  However,  the  said  code  would  be  revised  again  in  1932,  and  several  times  thereafter.  In  fact,  under 
the Codigo  Penal  Espaol  de  1995,  the  crime  of  theft  is  now  simply  defined  as [e]l  que,  con  nimo  de  lucro,  tomare  las 
cosas muebles ajenas sin la voluntad de su dueo ser castigado[82]  

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

The  oft‐cited  Salvador  Viada  adopted  a  question‐answer  form  in  his  1926  commentaries  on  the  1870 Codigo 
Penal  de  Espaa.  Therein,  he  raised  at  least  three  questions  for  the  reader  whether  the  crime  of  frustrated  or 
consummated  theft  had  occurred.  The  passage  cited  in Dio was  actually  utilized  by  Viada  to  answer  the  question 
whether frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa ajena, 
vindose  sorprendido,  la  arroja  al  suelo.[83] Even  as  the  answer  was  as  stated  in Dio,  and  was  indeed  derived  from  the 
1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently 
very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees 
of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away 
the garment as he fled.[84]  

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

Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de 
harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no 
tuvo  efecto  por  la  intervencin  de  la  policia  situada  en  el  local  donde  se  realiz  la  sustraccin  que  impidi 
 pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe 
apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" 
cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. 
Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido 
en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 
1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.[86] 

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

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

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

This  divergence  of  opinion  convinces  us,  at  least,  that  there  is  no  weighted  force  in  scholarly  thought  that 
obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of 
frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of 
Cuello Calns position. 

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

V. 

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

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The  ability of the offender to freely 
dispose  of  the  property  stolen  is  not  a  constitutive  element  of  the  crime  of  theft.  It  finds  no  support  or  extension  in 
Article  308,  whether  as  a  descriptive  or  operative  element  of  theft  or  as  the mens  rea or actus reus of  the  felony. To 
restate  what  this  Court  has  repeatedly  held:  the  elements  of  the  crime  of  theft  as  provided  for  in  Article  308  of  the 
Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that 
the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the 
taking be accomplished without the use of violence against or intimidation of persons or force upon things.[90] 

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

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

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

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment 
the offender gains possession of the thing, even if he has no opportunity to dispose of the same.[92]And long ago, we 
asserted in People v. Avila:[93] 
 x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated 
into the physical power of the thief, which idea is qualified by other conditions, such as that the taking 
must be effected animo lucrandi and without the consent of the owner; and it will be here noted that 
the  definition  does  not  require  that  the  taking  should  be  effected  against  the  will  of  the  owner  but 
merely that it should be without his consent, a distinction of no slight importance.[94] 

Insofar as we consider the  present question, unlawful taking  is most material in  this  respect. Unlawful taking, 

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

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

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

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of 
the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect 
any  legislated  intent,[95] since  the  Court  would  have  carved  a  viable  means  for  offenders  to  seek  a  mitigated  penalty 
under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to 
when  a  stolen  item  is  susceptible  to  free  disposal  by  the  thief.  Would  this  depend  on  the  psychological  belief  of  the 
offender at the time of the commission of the crime, as implied in Dio? 

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

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

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the 
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such 
fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that 
 the  free  disposition  of  the  items  stolen  is  in  any  way  determinative  of  whether  the  crime  of  theft  has  been 
produced. Dio itself  did  not  rely  on  Philippine  laws  or  jurisprudence  to  bolster  its  conclusion,  and  the  later Flores was 
ultimately  content  in  relying  on Dio alone  for  legal  support. These  cases  do  not  enjoy  the  weight  of stare  decisis,  and 
even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds 
true of Empilis, a regrettably stray decision which has not since found favor from this Court. 

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

 WHEREFORE, the petition is DENIED. Costs against petitioner. 

SO ORDERED. 

DANTE O. TINGA 

Associate Justice 

  

WE CONCUR: 

REYNATO S. PUNO 

Chief Justice
  

LEONARDO A. QUISUMBING  CONSUELO YNARES‐SANTIAGO 
Associate Justice  Associate Justice  

ANGELINA SANDOVAL‐GUTIERREZ  ANTONIO T. CARPIO 
Associate Justice  Associate Justice  

MA. ALICIA AUSTRIA‐MARTINEZ  RENATO C. CORONA 
Associate Justice  Associate Justice 
  
  
  

CONCHITA CARPIO MORALES  ADOLFO S. AZCUNA 
 Associate Justice  Associate Justice 

MINITA V. CHICO‐NAZARIO  CANCIO C. GARCIA 
Associate Justice  Associate Justice 

PRESBITERO J. VELASCO, JR.  ANTONIO EDUARDO B. NACHURA 
Associate Justice  Associate Justice 

  

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
  

REYNATO S. PUNO 

Chief Justice 

[1]
See infra, People v. Dio and People v. Flores.
[2]
Not accounting for those unpublished or unreported decisions, in the one hundred year history of this Court,
which could no longer be retrieved from the Philippine Reports or other secondary sources, due to their wholesale
destruction during the Second World War or for other reasons.
[3]
See People v. Adiao, infra. There have been a few cases wherein the Court let stand a conviction for frustrated
theft, yet in none of those cases was the issue squarely presented that theft could be committed at its frustrated stage.
See People v. Abuyen, 52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and People v. Tapang, 88 Phil. 721
(1951). In People v. Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the Court did tacitly accept the viability of a
conviction for frustrated theft, though the issue expounded on by the Court pertained to the proper appellate jurisdiction
over such conviction.

It would indeed be error to perceive that convictions for frustrated theft are traditionally unconventional in this
jurisdiction, as such have routinely been handed down by lower courts, as a survey of jurisprudence would reveal. Still,
the plain fact remains that this Court , since Adiao in 1918, has yet to directly rule on the legal foundation of frustrated
theft, or even discuss such scenario by way of dicta.

In passing, we take note of a recent decision of the Court of Appeals in People v. Concepcion, C.A. G.R. CR No.
28280, 11 July 2005 (See at http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate court affirmed a
conviction for frustrated theft, the accused therein having been caught inside Meralco property before he could flee with
some copper electrical wire. However, in the said decision, the accused was charged at the onset with frustrated theft, and
the Court of Appeals did not inquire why the crime committed was only frustrated theft. Moreover, the charge for theft
was not under the Revised Penal Code, but under Rep. Act No. 7832, a special law.
[4]
53 Phil. 226 (1929).
[5]
217 Phil. 377 (1984).
 [6]
Records, pp. 1-2.
[7]
Rollo, pp. 21-22.
[8]
Id. at 22.
[9]
See id. at 472.
[10]
See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other apparent suspects. The
affidavits and sworn statements that were executed during the police investigation by security guards Lago and Vivencio
Yanson, by SM employee Adelio Nakar, and by the taxi driver whose cab had been hailed to transport the accused,
commonly point to all six as co-participants in the theft of the detergents. It is not explained in the record why no charges
were brought against the four (4) other suspects, and the prosecutions case before the trial court did not attempt to draw in
any other suspects other than petitioner and Calderon. On the other hand, both petitioner and Calderon claimed during
trial that they were innocent bystanders who happened to be in the vicinity of the Super Sale Club at the time of the
incident when they were haled in, along with the four (4) other suspects by the security guards in the resulting confusion.
See infra. However, both petitioner and Calderon made no move to demonstrate that the non-filing of the charges against
the four (4) other suspects somehow bolstered their plea of innocence.

In any event, from the time this case had been elevated on appeal to the Court of Appeals, no question was
anymore raised on the version of facts presented by the prosecution. Thus, any issue relative to these four (4) other
suspects should bear no effect in the present consideration of the case.
[11]
Also identified in the case record as Rosalada or Rosullado. He happened to be among the four (4) other
suspects also apprehended at the scene and brought for investigation to the Baler PNP Station. See id. Rosulada also
testified in court in behalf of Calderon. See Records, pp. 357-390.
[12]
Records, pp. 330-337.
[13]
A person who was neither among the four (4) other suspects (see note 6) nor a witness for the defense.
[14]
Rollo, p. 25.
[15]
Records, pp. 424-425.
[16]
Id. at 472-474; Penned by Judge Reynaldo B. Daway.
[17]
Id. at 474.
[18]
Id. at 484.
[19]
CA rollo, pp. 54-62.
[20]
Rollo, p. 25.
[21]
Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of Appeals Third Division, concurred
in by Associate Justices Martin S. Villarama, Jr. and Mario L. Guaria.
[22]
A motion for reconsideration filed by petitioner was denied by the Court of Appeals in a Resolution dated 1
October 2003.
[23]
Rollo, pp. 8-15.
[24]
Id. at 12.
[25]
Id. at 9.
[26]
Id. at at 13-14.
 [27]
No. 924-R, 18 February 1948, 45 O.G. 3446.
[28]
6 C.A. Rep. 2d 835 (1964).
[29]
See e.g., L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th ed., 2001), at 112-113
and R. AQUINO, I THE REVISED PENAL CODE (1997 ed.), at 122.
[30]
Act No. 3185, as amended.
[31]
See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the subjective phase as that
point where [the offender] still has control over his acts, including their (acts) natural course. See L.B. REYES, I THE
REVISED PENAL CODE: CRIMINAL LAW (13th Ed., 2001), at 101.
[32]
People v. Caballero, 448 Phil. 514, 534 (2003).
[33]
See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.
[34]
U.S. v. Eduave, 36 Phil. 209, 212 (1917).
[35]
People v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note 29, at 39. See also Lecaroz v.
Sandiganbayan, 364 Phil. 890, 905 (1999).
[36]
See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.
[37]
People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW DICTIONARY, 5th ed., p. 889.
[38]
Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, 490.
[39]
City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga, Romualdez v.
Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400.
[40]
J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251, 288.
[41]
See also REVISED PENAL CODE, Art. 310, which qualifies theft with a penalty two degrees higher if
committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter
or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or
if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance.
[42]
See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing People v. Sison, 322
SCRA 345, 363-364 (2000).
[43]
S. GUEVARRA, COMMENTARIES ON THE REVISED PENAL CODE (4th ed., 1946), at 614.
[44]
Id. at 615.
[45]
Id. citing Inst. 4, 1, 1.

[46]
Section 1(2) of the Theft Act of 1968 states: It is immaterial whether the appropriation is made with a view to
gain, or is made for the thiefs own benefit. Sir John Smith provides a sensible rationalization for this doctrine: Thus, to
take examples from the old law, if D takes Ps letters and puts them down on a lavatory or backs Ps horse down a mine
shaft, he is guilty of theft notwithstanding the fact that he intends only loss to P and no gain to himself or anyone else. It
might be thought that these instances could safely and more appropriately have been left to other branches of the criminal
lawthat of criminal damage to property for instance. But there are cases where there is no such damage or destruction of
the thing as would found a charge under another Act. For example, D takes Ps diamond and flings it into a deep pond. The
diamond lies unharmed in the pond and a prosecution for criminal damage would fail. It seems clearly right that D should
be guilty of theft. J. SMITH, SMITH & HOGAN CRIMINAL LAW (9th ed., 1999), at 534.
[47]
F. REGALADO, CRIMINAL LAW CONSPECTUS (1st ed., 2000), at 520.
[48]
People v. Kho Choc, 50 O.G. 1667, cited in REGALADO, id. at 521.
[49]
People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v. Roxas, CA-G.R. No.
14953, 31 October 1956, all cited in REGALADO, supra note 47 at 521.
[50]
People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417, cited in REGALADO, supra
note 47 at 521.
[51]
REGALADO, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No. 54171, 28 October
1980, 100 SCRA 467; Association of Baptists for World Evangelism v. Fieldmens Ins. Co., No. L-28772, 21 September
1983, 209 Phil. 505 (1983). See also People v. Bustinera, supra note 42.
[52]
The distinction being inconsequential if the criminal charge is based on a special law such as the Dangerous
Drugs Law. See e.g., People v. Enriquez, G.R. No. 99838, October 23 1997, 281 SCRA 103, 120.
[53]
38 Phil. 754 (1918).
[54]
Id. at 755.
[55]
Id.
[56]
Id. at 755-756.
[57]
Supra note 4.
[58]
Supra note 4 at 227.
[59]
Id.
[60]
People v. Dio, supra note 27 at 3450.
[61]
Id.
[62]
Id.
[63]
Id. at 3451.
[64]
People v. Flores, supra note 28 at 840.
[65]
Id. at 836. The Court of Appeals in Flores did not identify the character of these stolen merchandise.
[66]
Id. at 841.
[67]
Id.
[68]
People v. Dio, supra note 27 at 841.
[69]
People v. Naval and Beltran, CA 46 O.G. 2641.
[70]
See note 62.
 [71]
AQUINO, supra note 29 at 122.
[72]
Id. at 110.
[73]
C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.

[74]
Id. at 1391. Citations omitted.
[75]
CA G.R. No. 2107-R, 31 May 1949.
[76]
Note the similarity between this holding and the observations of Chief Justice Aquino in note 72.
[77]
REYES, supra note 29 at 113.
[78]
Supra note 5.

[79]
REVISED PENAL CODE, Art. 310 states that the crime of theft shall "be punished by the penalties next
higher by two degrees than those respectively expressed in the next preceding article x x x if the property stolen x x x
consists of coconuts taken from the premises of a plantation, x x x." Thus, the stealing of coconuts when they are still in
the tree or deposited on the ground within the premises is qualified theft. When the coconuts are stolen in any other place,
it is simple theft. Stated differently, if the coconuts were taken in front of a house along the highway outside the coconut
plantation, it would be simple theft only.

[In the case at bar, petitioners were seen carrying away fifty coconuts while they were still in the premises of the
plantation. They would therefore come within the definition of qualified theft because the property stolen consists of
coconuts taken from the premises of a plantation.] Empelis v. IAC, supra note 5, at 379, 380.

[80]
Empelis v. IAC, supra note 5, at 380.
[81]
Id.

[82]
Art. 234, Cdigo Penal Espaol de 1995. See Ley Orgnica 10/1995, de 23 de noviembre, del Cdigo Penal,
http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html (Last visited, 15 April 2007). The traditional qualifier but
without violence against or intimidation of persons nor force upon things, is instead incorporated in the definition of
robbery (robos) under Articulo 237 of the same Code (Son reos del delito de robo los que, con nimo de lucro, se
apoderaren de las cosas muebles ajenas empleando fuerza en las cosas para acceder al lugar donde stas se encuentran o
violencia o intimidacin en las personas.)

By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following manner: A person is guilty
of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other
of it; and thief and steal shall be construed accordingly. See Section 1(1), Theft Act 1968 (Great Britain). The most
notable difference between the modern British and Spanish laws on theft is the absence in the former of the element
of animo lucrandi. See note 42.

[83]
1 S. VIADA, CODIGO PENAL REFORMADO DE 1870 (1926 ed) at 103.
  
[84]
Considerando que segn se desprende de la sentencia recurrida, los dependientes de la sastrera de D. Joaquin 
Gabino  sorprendieron  al  penado  Juan  Gomez  Lopez  al  tomar  una  capa  que  haba  en  un  maniqu,  por  lo  que  hubo  de 
arrojarla al suelo, siendo detenido despues por agentes de la Autoridad yque esto supuesto es evidente que el delito no 
aparece realizado en toda la extensin precisa para poderlo calificar como consumado, etc. Id. at 103‐104. 
 [85]
The other examples cited by Viada of frustrated theft are in the case where the offender was caught stealing
potatoes off a field by storing them in his coat, before he could leave the field where the potatoes were taken, see Viada
(supra note 83, at 103), where the offender was surprised at the meadow from where he was stealing firewood, id.
[86]
E. CUELLO CALON, II DERECHO PENAL (1955 ed.), at 799 (Footnote 1).
[87]
Id. at 798-799.
[88]
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United States v. Wiltberger,
18 U.S. 76 (1820).
[89]
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See also Dowling v. United States,
473 U.S. 207 (1985).
[90]
See e.g., People v. Bustinera, supra note 42.

[91]
AQUINO, supra note 29, at 110.
[92]
People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280 (2003); People v.
Bustinera, supra note 42 at 295.
[93]
44 Phil. 720 (1923).
[94]
Id. at 726.
[95]
Justice Regalado cautions against putting a premium upon the pretensions of an accused geared towards
obtention of a reduced penalty. REGALADO, supra note 47, at 27.
 

 
 FIRST DIVISION

[G.R. No. 144621. May 9, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ISAGANI GUITTAP y PENGSON (Acquitted), WILFREDO
MORELOS y CRUZ (Acquitted), CESAR OSABEL @ DANILO MURILLO @ DANNY @ SONNY
VISAYA @ BENJIE CANETE, ARIEL DADOR y DE CHAVEZ (Discharge), DECENA MASINAG VDA.
DE RAMOS, LUISITO GUILLING @ LUISITO (Acquitted), and JOHN DOE @ PURCINO, accused.
DECENA MASINAG VDA. DE RAMOS, appellant.

DECISION
YNARES-SANTIAGO, J.:

Appellant Decena Masinag Vda. de Ramos assails the decision[1] of the Regional Trial Court of Lucena
City, Branch 60, in Criminal Case No. 92-387, finding her and accused Cesar Osabel guilty beyond reasonable
doubt of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of reclusion
perpetua, with all the accessory penalties provided by law, and to indemnify the heirs of the victims the
amounts of P100,000.00 as civil indemnity and P67,800.00 as actual damages.
On September 1, 1992, an Amended Information for Robbery with Double Homicide was filed against
appellant Masinag, Isagani Guittap y Pengson, Wilfredo Morelos y Cruz, Cesar Osabel,[2] Ariel Dador y De
Chavez, Luisito Guilling and John Doe @ Purcino. The accusatory portion of the information reads:

That on or about the 17th day of July 1992, in the City of Lucena, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, conspiring and confederating with one another, armed with bladed
weapons, by means of violence, and with intent to gain, did then and there willfully, unlawfully and feloniously take, steal
and carry away certain personal items, to wit:

one (1) solid gold ring valued at P8,000.00

one (1) diamond ring valued at P40,000.00
one (1) necklace with pendant valued at P2,000.00
cash money in the amount of P4,500.00
one (1) samsonite bag valued at P650.00
one (1) .22 Cal. Squibbman with SN 64130 valued at P5,000.00
one (1) pair of sandal valued at P650.00
one (1) music mate (karaoke) valued at P5,000.00
one (1) jacket (adidas) valued at P1,000.00; and
one (1) pair of shoes valued at P1,000.00

with a total value of P67,800.00, owned by and belonging to spouses Romualdo Jael and Lionela[3] Caringal, without the
consent and against the will of the latter, to the damage and prejudice of the aforementioned offended parties in the
aforestated sum of P67,800.00, Philippine Currency, and, on the same occasion of such robbery, the said accused,
conspiring and confederating with one another, armed with the same bladed weapons, taking advantage of superior
strength, and employing means to weaken the defense or of means or persons to insure or afford impunity, and with intent
to kill, did then and there willfully, unlawfully and feloniously stab both of said spouses Romualdo Jael and Lionela
Caringal thereby inflicting upon the latter several fatal wounds which directly caused the death of the aforenamed spouses.

Contrary to law.[4]

Upon arraignment, appellant Masinag pleaded not guilty. Trial on the merits thereafter ensued. Accused
Ariel Dador was discharged as a state witness while accused Purcino remained at large.
 On February 15, 2000, the trial court rendered its decision, the dispositive portion of which states:

WHEREFORE, premises considered, this court finds Cesar Osabel and Decena Masinag GUILTY beyond reasonable
doubt of the crime of robbery with homicide and they are sentenced to RECLUSION PERPETUA with all the accessory
penalties provided by law. For insufficiency of evidence, the accused Isagani Guittap, Wilfrido Morelos and Luisito
Guilling are hereby ACQUITTED.

The accused Cesar Osabel and Decena Masinag are also ordered to indemnify the heirs of the deceased Romualdo Jael
and Leonila Caringal Jael in the amount of (P100,000.00) One Hundred Thousand Pesos plus actual damages of
(P67,800.00) Sixty Thousand and Eight Hundred Pesos, Philippine Currency.

SO ORDERED.[5]

During the trial, state witness Ariel Dador testified that in the evening of July 15, 1992, Cesar Osabel
asked him and a certain Purcino to go with him to see appellant Masinag at her house in Isabang, Lucena
City. When they got there, Osabel and Masinag entered a room while Dador and Purcino waited outside the
house. On their way home, Osabel explained to Dador and Purcino that he and Masinag planned to rob the
spouses Romualdo and Leonila Jael.He further told them that according to Masinag, the spouses were old and
rich, and they were easy to rob because only their daughter lived with them in their house.
The following day, at 7:00 p.m., Dador, Osabel, and Purcino went to the house of the Jael spouses to
execute the plan. Osabel and Purcino went inside while Dador stayed outside and positioned himself
approximately 30 meters away from the house. Moments later, he heard a woman shouting for help from inside
the house. After two hours, Osabel and Purcino came out, carrying with them one karaoke machine and one
rifle. Osabels hands were bloodied.He explained that he had to tie both the victims hands with the power cord
of a television set before he repeatedly stabbed them. He killed the spouses so they can not report the robbery
to the authorities.
Osabel ordered Dador to hire a tricycle while he and Purcino waited inside the garage of a bus
line. However, when Dador returned with the tricycle, the two were no longer there. He proceeded to the house
of Osabel and found him there with Purcino. They were counting the money they got from the victims. They
gave him P300.00. Later, when Dador accompanied the two to Sta. Cruz, Manila to dispose of the karaoke
machine, he received another P500.00. Osabel had the rifle repaired in Gulang-Gulang, Lucena City.
Dador and Osabel were subsequently arrested for the killing of a certain Cesar M. Sante. During the
investigation, Dador executed an extrajudicial confession admitting complicity in the robbery and killing of the
Jael spouses and implicating appellant and Osabel in said crime. The confession was given with the
assistance of Atty. Rey Oliver Alejandrino, a former Regional Director of the Human Rights Commission
Office. Thereafter, Osabel likewise executed an extrajudicial confession of his and appellants involvement in
the robbery and killing of the Jaels, also with the assistance of Atty. Alejandrino.
Simeon Tabor, a neighbor of the Jaels, testified that at 8:00 in the morning of July 17, 1992, he noticed
that the victims, who were known to be early risers, had not come out of their house. He started calling them
but there was no response. He instructed his son to fetch the victims son, SPO1 Lamberto Jael. When the
latter arrived, they all went inside the house and found bloodstains on the floor leading to the bathroom. Tabor
opened the bathroom door and found the lifeless bodies of the victims.
Dr. Vicente F. Martinez performed the post-mortem examination on the bodies of the victims and testified
that since rigor mortis had set in at the back of the neck of the victims, Romualdo Jael died between six to
eight hours before the examination while Leonila Jael died before midnight of July 16, 1992. The cause of
death of the victims was massive shock secondary to massive hemorrhage and multiple stab wounds.
Appellant Masinag, for her part, denied involvement in the robbery and homicide. She testified that she
knew the victims because their houses were about a kilometer apart. She and Osabel were friends because he
courted her, but they never had a romantic relationship. She further claimed that the last time she saw Osabel
was six months prior to the incident. She did not know Dador and Guilling at the time of the incident. According
to her, it is not true that she harbored resentment against the victims because they berated her son for stealing
their daughters handbag. On the whole, she denied any participation in a conspiracy to rob and kill the victims.
 From the decision convicting appellant Masinag and Osabel, only the former appealed, based on the lone
assigned error:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF CONSPIRING WITH HER CO-ACCUSED TO COMMIT THE CRIME OF
ROBBERY WITH HOMICIDE DESPITE THE ABSENCE OF HER ACTUAL PARTICIPATION IN THE
COMMISSION OF THE SAID CRIME.

The appeal is meritorious.

While it is our policy to accord proper deference to the factual findings of the trial court,[6] owing to their
unique opportunity to observe the witnesses firsthand and note their demeanor, conduct, and attitude under
grueling examination,[7] where there exist facts or circumstances of weight and influence which have been
ignored or misconstrued, or where the trial court acted arbitrarily in its appreciation of facts,[8] we may disregard
its findings.
Appellant contends that the extrajudicial confessions of Osabel and Dador were insufficient to establish
with moral certainty her participation in the conspiracy. Firstly, Dador was not present to hear appellant
instigate the group to rob the Jael spouses. He only came to know about the plan when Osabel told him on
their way home. Thus, Dador had no personal knowledge of how the plan to rob was actually made and of
appellants participation thereof.Secondly, while Osabel initially implicated her in his extrajudicial confession as
one of the conspirators, he repudiated this later in open court when he testified that he was forced to execute
his statements by means of violence.
On direct examination, Dador narrated what transpired in the house of appellant on July 15, 1992, to wit:
PROSECUTOR GARCIA:
Q. And do you remember the subject or subjects of that conversation that transpired among you?
A. Yes, sir.
Q. Please tell us what was the subject or subjects of the conversation that transpired among you on
July 15, 1992 at the house of Decena Masinag?
A. The subject of our conversation there was the robbing of Sps. Jael, sir.
Q. How did that conversation begin with respect to the proposed robbery of Sps. Jael?
A. It was only the two (2) who planned that supposed robbery, Daniel Murillo and Decena Masinag, sir.
Q. And why were you able to say that it was Danilo Murillo and Decena Masinag who planned the
robbery?
A. Because they were the only ones who were inside the house and far from us and they were
inside the room, sir.
xxxxxxxxx
Q. On that night, July 15, 1992 did you ever have any occasion to talk with Decena Masinag
together with your companions Danilo Murillo and Purcino?
A. No, sir.
Q. Was there any occasion on the same date that Decena Masinag talk to you?
ATTY. FLORES:
Already answered, your Honor.
COURT:
Witness, may answer.
WITNESS:
 None, sir. (emphasis ours)[9]
We find that the foregoing testimony of Dador was not based on his own personal knowledge but from
what Osabel told him. He admitted that he was never near appellant and that he did not talk to her about the
plan when they were at her house on July 15, 1992. Thus, his statements are hearsay and does not prove
appellants participation in the conspiracy.
Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows
of his own personal knowledge, i.e., which are derived from his own perception; otherwise, such testimony
would be hearsay. Hearsay evidence is defined as evidence not of what the witness knows himself but of what
he has heard from others.[10] The hearsay rule bars the testimony of a witness who merely recites what
someone else has told him, whether orally or in writing.[11] In Sanvicente v. People,[12] we held that when
evidence is based on what was supposedly told the witness, the same is without any evidentiary weight for
being patently hearsay. Familiar and fundamental is the rule that hearsay testimony is inadmissible as
evidence.[13]
Osabels extrajudicial confession is likewise inadmissible against appellant. The res inter alios acta rule
provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of
another.[14] Consequently, an extrajudicial confession is binding only upon the confessant and is not admissible
against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a
mans own acts are binding upon himself, and are evidence against him. So are his conduct and
declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be
bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers,
neither ought their acts or conduct be used as evidence against him.[15]
The rule on admissions made by a conspirator, while an exception to the foregoing, does not apply in this
case. In order for such admission to be admissible against a co-accused, Section 30, Rule 130 of the Rules of
Court requires that there must be independent evidence aside from the extrajudicial confession to prove
conspiracy. In the case at bar, apart from Osabels extrajudicial confession, no other evidence of appellants
alleged participation in the conspiracy was presented by the prosecution. There being no independent
evidence to prove it, her culpability was not sufficiently established.
Unavailing also is rule that an extrajudicial confession may be admissible when it is used as a
corroborative evidence of other facts that tend to establish the guilt of his co-accused. The implication of this
rule is that there must be a finding of other circumstantial evidence which, when taken together with the
confession, establishes the guilt of a co-accused beyond reasonable doubt.[16] As earlier stated, there is no
other prosecution evidence, direct or circumstantial, which the extrajudicial confession may corroborate.
In People v. Berroya,[17] we held that to hold an accused liable as co-principal by reason of conspiracy, he
must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That overt act
may consist of active participation in the actual commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting
moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy.
In the case at bar, no overt act was established to prove that appellant shared with and concurred in the
criminal design of Osabel, Dador and Purcino. Assuming that she had knowledge of the conspiracy or she
acquiesced in or agreed to it, still, absent any active participation in the commission of the crime in furtherance
of the conspiracy, mere knowledge, acquiescence in or agreement to cooperate is not sufficient to constitute
one as a party to a conspiracy.[18] Conspiracy transcends mere companionship.[19]
Conspiracy must be proved as convincingly as the criminal act itself. Like any element of the offense
charged, conspiracy must be established by proof beyond reasonable doubt.[20] Direct proof of a previous
agreement need not be established, for conspiracy may be deduced from the acts of appellant pointing to a
joint purpose, concerted action and community of interest. Nevertheless, except in the case of the mastermind
of a crime, it must also be shown that appellant performed an overt act in furtherance of the conspiracy.[21]
All told, the prosecution failed to establish the guilt of appellant with moral certainty. Its evidence falls short
of the quantum of proof required for conviction. Accordingly, the constitutional presumption of appellants
innocence must be upheld and she must be acquitted.
 WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Lucena City,
Branch 60 in Criminal Case No. 92-487, insofar only as it finds appellant guilty beyond reasonable doubt of the
crime of Robbery with Homicide, is REVERSED and SET ASIDE. Appellant Decena Masinag Vda. De Ramos
is ACQUITTED of the crime of Robbery with Homicide. She is ORDERED RELEASED unless there are other
lawful causes for her continued detention. The Director of Prisons is DIRECTED to inform this Court, within five
(5) days from notice, of the date and time when appellant is released pursuant to this Decision.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio and Azcuna, JJ., concur.

[1] Penned by Judge Abelio M. Marte.

[2] Also known as Danilo Murillo, Danny, Sonny Visaya, Benjie Canete.
[3] Spelled elsewhere in the records as Leonila.
[4]
Rollo, pp. 10-11.
[5]
Rollo, p. 57.
[6]
People v. Franco, 336 Phil. 206, 213 [1997].
[7]
People v. Abayon, G.R. No. 142874, 31 July 2002.
[8] People v. Bertulfo, G.R. No. 143790, 7 May 2002.
[9] TSN, November 23, 1993, pp. 17-22.
[10] People v. Manhuyod, G.R. No. 124676, 20 May 1998, 290 SCRA 257, 270.
[11] People v. Garcia, G.R. No. 124514, 6 July 2000, 335 SCRA 208, 215.
[12] G.R. No. 132081, 26 November 2002.
[13] People v. Ubongen, G.R. No. 126024, 20 April 2001.
[14] Revised Rules of Court, Rule 130, Section 25.
[15]
People v. Raquel, 333 Phil. 72, 80 [1996].
[16]
People v. Francisco, G.R. No. 138022, 23 August 2001, 363 SCRA 637, 649, citing People v. Aquino, 369
Phil. 701, 725 [1999].
[17]
347 Phil. 410, 430 [1997].
[18]
People v. Campos, G.R. No. 111535, 19 July 2001, 361 SCRA 339, 349.
[19]
People v. Listerio, G.R. No. 122099, 5 July 2000, 335 SCRA 40, 59.
[20]
People v. Leao, G.R. No. 138886, 9 October 2001, 366 SCRA 774, 788.
[21] People v. Tamayo, G.R. No. 138608, 24 September 2002.
 

 
 THIRD DIVISION
 

  

JOSE INGAL y SANTOS,    G.R. No. 173282 

Petitioner,
  

Present: 
YNARES‐SANTIAGO, J., 
- versus - Chairperson, 
AUSTRIA‐MARTINEZ, 
TINGA,* 
CHICO‐NAZARIO, and 
REYES, JJ. 
PEOPLE OF THE PHILIPPINES,   
Promulgated: 
Respondent.
  
March 4, 2008 
x‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x 

D E C I S I O N
CHICO‐NAZARIO, J.: 

Assailed before Us is the Decision[1] of the Court of Appeals in CA‐G.R. CR.‐H.C. No. 01056, dated 31 August 2005, 
which affirmed in toto the decision[2] of the Regional Trial Court (RTC) of Manila, Branch 2, convicting petitioner Jose S. 
Ingal of the crime of murder.  

For  the  death  of  one  Rolando  N.  Domingo  a.k.a.  Toto,  petitioner  was  charged  with  murder  in  an  information  which 
reads: 

That  on  or  about  March  2,  1987,  in  the  City  of  Manila,  Philippines,  the  said  accused,  conspiring  and 
confederating  together  with  one  RICARDO  LIDOT  who  has  already  been  convicted  of  the  said  offense 
under  Crim.  Case  No.  87‐53676  with  RTC  of  Manila,  Branch  V,  and  with  others  whose  true  names, 
identities  and  present  whereabouts  are  still  unknown  and  helping  one  another,  taking  advantage  of 
their superior strength, did then and there willfully, unlawful and feloniously, with intent to kill, and with 
treachery and evident premeditation, attack, assault and use personal violence upon the person of one 
ROLANDO DOMINGO y NALANGAN @ TOTO by then and there stabbing the latter on different parts of 
his body with a deadly weapon, thereby inflicting upon him mortal stab wounds which were the direct 
and immediate cause of his death thereafter.[3] 

When  arraigned  on 27  September  1994,  petitioner,  with the  assistance  of  counsel de  oficio,  pleaded  not  guilty  to the 
crime charged.[4] 

The  prosecution  presented  the  following  witnesses,  namely:  (1)  Myrna  Nalangan  Domingo;[5] (2)  Aida  Bona;[6] (3) 
Rosalinda Tan;[7] (4) Dr. Marcial G. Ceido;[8] (5) SPO2 Leon Salac, Jr.;[9] and (6) PFC Benjamin C. Boco.[10] 
Myrna  Nalangan  Domingo,  the  mother  of  the  victim,  testified  that  her  son  was  a  nineteen‐year‐old  student  when  he 
died  on 2  March  1987. She  said  she  was  at  home  when  she  learned  that  her  son  was  stabbed  and  was  brought  to 
the Mary Johnston Hospital. Upon learning of the news, she immediately went to the hospital to see her son. She said 
her  son  was  still  alive  when  she  arrived  in  the  hospital,  but  he  eventually  passed  away  that  same  day. She  said  she 
incurred hospital and funeral expenses. The death of her son caused her anguish and pain. 

The  next  witness  for  the  prosecution  was  Aida  Bona,  a  resident  of Perla  Street,  Tondo, Manila,  and  the  owner  of 
the carinderia where the stabbing took place. She narrated that at around 9:00 p.m. of 2 March 1987, she was in front of 
her carinderia and the victim, Rolando Domingo, nicknamed Toto, was eating thereat. While Toto was eating, petitioner 
Jose Ingal approached him, pulled his hair and repeatedly stabbed him. She was around an arms length away from Toto 
when he was stabbed. After petitioner stabbed Toto, he just walked away as if nothing happened. She shouted for help 
but  nobody  came  to  help. She  said  she  was  certain  the  assailant  was  the  petitioner  because  of  the  right  mole  on  his 
eyelid. She added she did not see anyone helping the petitioner when he stabbed the victim. Aside from the victim, only 
she, Rosalinda Tan, and the girlfriend of the victim were in the carinderia. 

Mrs. Bona explained she gave her first written statement about the incident on 26 August 1994. On the night of 
the incident, she told the police about the appearance of the suspect. What she revealed was reduced into writing but 
she did not sign it and told the police she would sign the same only if the suspect would be apprehended. She said she 
first saw the petitioner on 2 March 1987 and saw him the second time when he was arrested on 26 August 1994. 

Rosalinda Tan, a helper at the carinderia of Mrs. Bona, testified that at around 9:00 p.m. of 2 March 1987, she 
was  attending  to  the  needs  of  the  customers  in  the carinderia. A  person,  later  identified  as  the  petitioner,  came  to 
the carinderia and  stabbed  Rolando  Domingo. She  disclosed  she  was  in  front  of  the  victim,  about  two  meters  away, 
when  petitioner  placed  a  towel  on  the  neck  of  the  victim  and  stabbed  him  thrice.Petitioner  thereafter  removed  the 
towel  and  walked  away  towards  the  end  of Perla  Street. Like  Mrs.  Bona,  she  executed  a  sworn  statement  when 
petitioner was arrested. She explained that only one person stabbed the victim.[11] 

Former Medico‐Legal Officer of the Western Police District (WPD) Dr. Marcial G. Ceido testified that on 3 March 
1987,  he  conducted  the  autopsy  on  Rolando  Domingos  body  which  was  identified[12] by  the  latters  sister,  Nympha 
Mationg. He said the victim suffered four stab wounds, two of which were penetrating and fatal. The first wound was 
non‐penetrating and located at the right upper thorax, right chest. The second one was penetrating and located at the 
left  cheek  on  the  left  side. The  third  one  penetrated  the  left  anterior  while  the  fourth  was  non‐penetrating  at  the 
back. He said the bladed weapon used was a tres cantos. The primary cause of death was a penetrating stab wound on 
the chest. He issued Autopsy Report No. W‐87‐167[13] and the victims Certificate of Death.[14] 

The testimony of Solomon Batallar, member of the WPD, was dispensed with when the parties stipulated that 
his testimony would show that he accompanied the mother of the victim to the residence of the petitioner, and that the 
petitioner was brought to the police station. 

Testifying next for the prosecution was SPO2 Leon Salac, Jr., a member of the WPD Command assigned to the 
Homicide Section. He  testified that on 27 August 1994, he was  assigned as an  investigator in the  Special  Team  of the 
WPDC that handles cases pertaining to crimes against persons. He remembered handling the case involving the murder 
of Rolando Domingo in which the suspect was the petitioner. He said he prepared documents ‐ Progress Report dated 27 
August 1994 and the statements of witnesses ‐ and thereafter placed the petitioner under arrest. However, he was not 
the one who took the statements of Aida Bona and Rosalinda Tan. 

The  other  witness  was  Benjamin  C.  Boco,  retired  Police  Inspector  of  the  WPD  assigned  to  the  Homicide 
Section. He recounted that on 3 March 1987, he received a call from a certain Mr. Garrote, a Security Guard of Mary 
Johnston  Hospital,  informing  him  that  a  stabbing  victim  died. Upon  receipt  of  said  information,  he  proceeded  to  the 
hospital and saw the victim at the morgue. The victim was Rolando Domingo. He thereafter went to the crime scene and 
talked to Aida Bona, the owner of the carinderia where the stabbing happened. Mrs. Bona told him that the victim was 
eating in her carinderia when the suspect, Jose Ingal, suddenly arrived and stabbed the victim. Boco said he tried to get 
a written statement from Mrs. Boco who declined and told him that she would be willing to give her statement upon the 
apprehension of the suspect. Boco said he then went to a certain house where the suspect was allegedly hiding, but the 
suspect was not there. So, he went back to the office and prepared an Advance Report.[15] 

 The prosecution formally offered Exhibits A to G, inclusive, with sub‐markings which the trial court admitted.[16] 

For the defense, the following took the witness stand: (1) Juanito Yang;[17] (2) SPO1 Loreto A. Concepcion;[18] (3) 
Ricardo de Leon;[19] (4) petitioner Jose Ingal;[20] and (5) Remedios A. Ibajo.[21] 

Sgt.  Juanito  Yang,  retired  police  officer,  testified  that  on 3  April  1987,  he  was  assigned  to  the  Command  of 
Investigation  Follow‐up  Unit,  Homicide  Section  of  the  WPD. He  was  assigned  a  case  involving  the  murder  of  Rolando 
Domingo  in  which  there  were  four  suspects,  namely:  Ricardo  Lidot,  a  certain  Joseph  and  two  others. In  the  Progress 
Report[22] dated 3  April  1987 that  he  prepared,  it  is  stated  that  Ricardo  Lidot  admitted  to  him  that  he  (Lidot)  stabbed 
Rolando  Domingo. He  likewise  prepared the  Booking  and  Information  Sheet[23] of  Ricardo  Lidot  alias  Carding  Daga. He 
revealed it was Lidot who told him there were three more suspects. 

SPO1 Loreto A. Concepcion of the WPD Homicide Section declared that on 31 March 1987 he, then a Patrolman, 
took and prepared the statement[24] of Gina dela Cruz regarding the murder of Rolando Domingo. 

Ricardo de Leon, a laborer, testified that on 2 March 1987, he was a resident of Perla Street, Tondo, Manila. At 
around 9:00  p.m. of  said  date,  he  was  about  to  buy  food  at  the carinderia of Aling Bona  at Perla  St.While  he  was 
approaching the carinderia, he saw Rolando Domingo a.k.a. Toto, with a lady companion eating in the carinderia. He saw 
the  group  of  Joseph,  Ricardo  Lidot  a.k.a.  Carding  Daga  and  two  others  arrive.Joseph  and  Carding  Daga  entered 
the carinderia with the latter handing a tres cantos to the former, while the other two stood as lookouts. He saw Joseph 
approach  Toto  and  stab  the  latter  three  times  with  the tres  cantos.De Leon said  he  was  five  arms  length  away  when 
Carding  Daga  gave  the  weapon  to  Joseph. After  the  stabbing  of  Toto,  he  heard  the  four  agree  that  they  would  meet 
at Smokey Mountain. Thereafter, the four left. 

De Leon said  it  is  not  true  that  Jose  Ingal  stabbed  Rolando  Domingo,  because  Ingal  was  not  there  in 
the carinderia. Joseph,  De Leon insists,  is  not  Jose  Ingal. De Leon did  not  tell  anybody  that  he  saw  the  stabbing 
incident. This  was  the  first  time  he  divulged  that  he  witnessed  the  crime. He  broke  his  silence  and  decided  to  testify 
because his sister requested him to do so. 
 Petitioner Jose Ingal testified for his defense. He narrated that on 2 March 1987, at around 9:00 p.m., he was in 
his place of work in Navotas. His work was to deliver fish to Divisoria every night. He reported for work before 8:00 p.m. 
and at around midnight, he, together with five others, delivered fish at Elcano St., Divisoria. He finished his delivery at 
around 7:00 a.m. of 3 March 1987. During the time he reported for work up to the time he finished his job, he said he 
did not go anywhere. 

Ingal said that he knew Rolando Domingo to be a loafer, and that he only learned what happened to Domingo a 
day after the latter was stabbed to death. He came to know that a certain Joseph stabbed the victim.Ingal disclosed that 
his only nickname is Joe. He explained that upon learning of the death of Domingo, he still stayed in his house at Coral 
St., Tondo, for two months before transferring to Dagupan, Tondo. From the time Domingo was stabbed until petitioner 
was arrested in 1994, the latter worked as a delivery man of fish and never lived outside of Tondo. 

Ingal testified he did not know Ricardo Lidot alias Carding Daga. He likewise disputed the declarations of Mmes. 
Aida  Bona  and  Rosalinda  Tan  that  he  was  the  one  who  stabbed  Rolando  Domingo. He  first  saw  Mrs.  Bona  when  she 
testified in court, while it was at the police headquarters that he first saw Mrs. Tan. He did not know any reason why 
these two women testified against him. 

Ingal disclosed that it took him twenty minutes by jeepney to travel from his residence to his place of work in 
the Navotas Fish Port,  and  that Elcano  St. where  he  delivered  fish  on 2  March  1987 was  only  one  ride  away  from  his 
house. After  finishing  delivery  at  7:00  a.m.  of  3  March  1987,  he  went  home  and  slept. He  learned  of  the  stabbing 
incident three days after from his neighbor. He denied he was called Bobot or Joseph. 

Remedios Ibajo testified that on 2 March 1987, she was a resident of 85 Quezon St., Tondo, Manila. She said she 
had known petitioner Ingal for a long time prior to 2 March 1987. She narrated that on said date, at around 9:00 p.m., 
she  was in  the carinderia of Aling Bona  which was located in Perla St.,  Tondo, Manila. While looking  at  the  food being 
sold there, she noticed a man (whom she later learned was named Toto) and a woman eating in the carinderia. She then 
saw two persons, who arrived together, approach Toto. One of them tapped the shoulder of Toto and told him Sumama 
ka sa amin. Toto did not answer. The one who tapped the shoulder of Toto asked his companion ‐ whom she knew to be 
Carding Daga ‐ for a weapon. This Carding Daga drew a tres cantos from his waist and handed it to another person. Upon 
receiving the weapon, the person who tapped the shoulder of Toto stabbed the latter three times. Mrs. Ibajo said she 
was two to three feet away from the victim who was on her left. She saw that Carding Daga and the person who stabbed 
the victim had two more companions who waited at the corner. The two who approached the victim went toward the 
two persons in the corner and told them, Let us go and see each other at Smokey Mountain. Then they walked away as 
if nothing happened. Toto was picked up by his lady companion, was placed in a pedicab, and was taken to the hospital. 

Mrs. Ibajo explained that she knew the petitioner because she knew his relatives. She bared that this was the 
first time she revealed what she knew about the stabbing incident. She did not see Jose Ingal at thecarinderia before or 
after 9:00 p.m. She added that her residence in March 1987 was only a block away from the crime scene. 

After formally offering Exhibits 1 to 5, inclusive, with sub‐markings, and with the admission thereof by the trial 
court, the defense rested its case.[25] 

As rebuttal witnesses, the prosecution presented (1) Rosalinda Tan[26] and (2) Elizabeth R. De Paz.[27] 
 Rosalinda  Tan took the witness  stand anew as  rebuttal  witness. She  said  she did not know any person by the 
name of Remedios Ibajo. She had known Aida Bona long before the stabbing incident, the latter was fondly called Aida, 
and there was no instance when the former was called Aling Bona. 

 Elizabeth R. De Paz, Punong Barangay and resident of 94 Quezon Street, Tondo, Manila, testified she had been 
residing in Quezon St. since 1962. As Punong Barangay in said place, she issued a Certification[28]stating that Remedios 
Ibajo  had  not  been  a  resident  of 85  Quezon  St.,  Tondo, Manila. Said  address  was  only  four  houses  away  from  her 
residence. She  did  not  know  anybody  by  that  name,  the  owner  of  the  house  told  her  that  the  place  had  never  been 
rented or leased, and no Remedios Ibajo lived there. She added that she knew the residents in their place, because they 
had a census in their barangay. 

 On 29 January 1999, the trial court convicted petitioner of murder in a decision, the dispositive portion of which 
reads: 

WHEREFORE,  premises  considered,  the  Court  finds  the  accused  Jose  Ingal  y  Santos  guilty  beyond 
reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal 
Code  and  hereby  sentences  him  to  suffer  the  indeterminate  penalty  of  imprisonment  ranging  from 
EIGHTEEN  (18)  YEARS,  TWO  (2)  MONTHS  and  TWENTY‐ONE  (21)  DAYS  as  minimum  to  TWENTY  (20) 
YEARS of reclusion temporal in its maximum period as maximum. 

Since accused Jose Ingal is detained, in the service of his sentence, he shall be credited the full period of 
his temporary detention. 

It  is  likewise  ordered  that  the  accused  be  transmitted  to  the  National  Bureau  of  Prison  thru  the 
Philippine  National  Police  (PNP)  pursuant  to  the  Supreme  Court  Resolution  En  Banc  laid  down  in  the 
case  of  People  vs.  Ricardo  C.  Carlos  (GR‐92860,  October  15,  1991)  cited  in  the  case  of  People  vs. 
Crescencia C. Reyes, En Banc, GR‐101127‐31, August 7, 1992.[29] 

The trial court gave credence to the testimonies of the prosecution witnesses Aida Bona and Rosalinda Tan vis‐‐
vis petitioners  defenses  of  denial  and  alibi. Mrs.  Bona,  the  owner  of  the carinderia where  the  stabbing  happened, 
informed the authorities that petitioner was the one who stabbed Rolando Domingo and said that she would not give a 
written  statement  until  and  unless  the  suspect  had  been  apprehended. Seven  years  later,  after  the  arrest  of  the 
petitioner, Mmes. Bona and Tan finally gave their sworn statements pointing to petitioner as the assailant. The court a 
quo said  that  the  weapon  used  (tres  cantos)  and  the  manner  in  which  the  victim  was  stabbed  (four  times  with  two 
penetrating  stab  wounds  on  the  chest)  clearly  indicated  the  intention  of  petitioner  to  kill  the  victim. The  victim  was 
unarmed and was suddenly stabbed several times by the petitioner. 

On 11  February  1999,  the  prosecution  filed  a  Motion  for  Reconsideration  asking  that  the  penalty  imposed  on 
petitioner be modified to reclusion perpetua as prescribed by law.[30] On 12 February 1999, petitioner filed a Notice of 
Appeal.[31] In an Order[32] dated 9 March 1999, the trial court, finding the motion to be meritorious, modified its decision 
and sentenced petitioner to suffer the penalty of reclusion perpetua.Consequently, it forwarded the records of the case 
to this Court. Pursuant, however, to our ruling in People v. Mateo,[33] the case was remanded to the Court of Appeals for 
appropriate action and disposition. 

  
 On 31 August 2005, the Court of Appeals rendered a decision affirming in toto the decision of the trial court, the 
decretal portion reading: 

WHEREFORE, premises considered, the assailed December 9, 1998 Decision of the Regional Trial Court is 
AFFIRMED  in  toto. This  case  is  hereby  transmitted  to  the  Honorable  Supreme  Court  for  final 
disposition.[34]  

In our Resolution[35] dated 19 June 2006, the parties were required to simultaneously file their respective supplemental 
briefs, if they so desired, within thirty (30) days from notice. The Office of the Solicitor General manifested that it was 
not  submitting  a  Supplemental  Brief,  considering  that  the  arguments  raised  by  petitioner  had  been  discussed  and 
refuted in its appellees brief dated 8 November 2000. On the part of the petitioner, he manifested that it was likewise 
unnecessary  to  file  a  supplemental  brief  since  the  allegations  contained  in  his  appellants  brief  would  be  the  same 
arguments he would submit to the Court. 

Petitioner assails his conviction, arguing there was error: 

I 

IN  GIVING  CREDENCE  TO  THE  CLAIMS  OF  THE  TWO  (2)  ALLEGED  EYEWITNESSES  THAT  THERE  IS  ONLY 
ONE (1) SUSPECT IN THE KILLING OF VICTIM ROLANDO DOMINGO, THAT IS, THE ACCUSED‐APPELLANT 
HEREIN, CONTRARY TO THE INFORMATION GATHERED BY THE POLICE INVESTIGATOR, PFC. JUANITO B. 
YANG,  POLICE  INVESTIGATOR  OF  THE  WESTERN  POLICE  DISTRICT  WHO  CONDUCTED  FOLLOW‐UP 
INVESTIGATION ON APRIL 3, 1987 TO THE EFFECT THAT THERE WERE, IN FACT, FOUR (4) SUSPECTS, ONE 
OF WHOM IS RICARDO LIDOT WHO WAS ALREADY CHARGED AND CONVICTED FOR THE DEATH OF THE 
VICTIM. 

II  

IN  CONVICTING  THE  ACCUSED‐APPELLANT  ON  THE  BASIS  OF  THE  TESTIMONIES  OF  TWO  (2)  ALLEGED 
EYEWITNESSES WHOSE STATEMENTS WERE GIVEN TO THE POLICE MORE THAN SEVEN (7) YEARS AFTER 
THE COMMISSION OF THE CRIME ON MARCH 2, 1987. 

III  

IN HOLDING THE ACCUSED‐APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED, 
IN THE ABSENCE OF SUFFICIENT PROOF TO JUSTIFY HIS CONVICTION. 

The  prosecution  relies  primarily  on  the  testimonies  of  Aida  Bona  and  Rosalinda  Tan,  who  allegedly  witnessed  the 
stabbing of Rolando Domingo in the carinderia they operate. On the other hand, petitioner raises the defense of denial 
and alibi. He claims he was in his place of work when the stabbing happened. Ricardo de Leon and Remedios Ibajo, both 
of whom allegedly witnessed the stabbing, testified that petitioner was not the one who stabbed the victim because he 
was not there. 

Petitioner contends that the trial court should not have given credence to the allegations of Mmes. Bona and Tan that 
they saw petitioner, who was alone, stab the victim, because their testimonies contradicted the testimony of defense 
witness Sgt. Juanito Yang,  who testified that in the course of his follow‐up investigation, he came to know that there 
were four (4) suspects in the killing of the victim and one of them Ricardo Lidot alias Carding Daga who was arrested, 
admitted to him that it was he who stabbed the victim for which he was convicted and jailed. 

We find his contention untenable. 

Sgt. Juanito Yang testified that Ricardo Lidot alias Carding Daga admitted to him that he was the one who stabbed the 
victim,[36] which declaration was contained in the Progress Report[37] dated 3 April 1987 and the Booking and Information 
Sheet[38] that  he  prepared. However,  after  going  over  these  two  documents,  we  find  therein  that  Ricardo  Lidot  alias 
Carding Daga never admitted that he stabbed Rodolfo Domingo. What he admitted was that it was he who handed the 
death  weapon  to  alias  Joseph  who  stabbed  the  deceased. This  is  further  supported  by  Progress  Report  II[39] dated 27 
August  1994 prepared  by  SPO2  Leon  Salac,  which  stated  that  Lidot  was  established  and  found  to  have  handed  the 
assailant  the  bladed  weapon  used  in  stabbing  aforenamed  victim. From  these,  it  is  clear  that  Sgt.  Yangs  testimony  in 
court was not in accord with the statements contained in the documents he prepared. 

The defense tries to destroy the credibility of Mmes. Bona and Tan by arguing that their testimonies that petitioner was 
alone at the time when he stabbed the victim was not consistent with the testimony of Sgt. Yang that there were four 
suspects in the killing of the victim. There being statements that there were allegedly four witnesses to the stabbing of 
victim does not diminish the credibility of the two eyewitnesses. The two prosecution witnesses were one in saying it 
was  petitioner  whom  they  saw  stab  the  victim. This  was  very  clear. The  fact  that  they  did  not  see  the  other  alleged 
accomplices in the execution of the crime does not detract from the veracity of their testimony that petitioner stabbed 
the  victim. Their  failure  to  mention  the  three  other  malefactors  simply  means  that  they  did  not  see  them  when  the 
assault was made. We agree with the Office of the Solicitor General when it said that:  

Said  witnesses  merely  testified  that  they  did  not  see  anybody  else  helping  appellant  in  stabbing  the 
victim. Their testimonies did not rule out the presence of other assailants as subsequently established 
by the progress report naming one Ricardo Lidot alias Carding Daga, Joseph alias Bebot and Jose Ingal, 
and two (2) unidentified persons as the suspects. Indeed, defense witness Ricardo de Leon testified that 
it was Lidot who handed the tres cantos to Joseph who in turn stabbed the victim thrice. Certainly, there 
is  no  inconsistency  between  the  progress  report  and  the  testimonies  of  the  prosecution 
eyewitnesses.[40]  

On the second assigned error, petitioner faults Mrs. Bona for having waited for the apprehension of the assailant after 
more than seven years to divulge to the policemen what had transpired on the night of 2 March 1987.If she truly were 
able  to  witness  the  crime,  the  fact  that  she  revealed  what  she  saw  only  after  seven  years  was  contrary  to  ordinary 
human experience and conduct, thereby rendering her testimony unworthy of credence. 

We  find  the  testimony  of  Mrs.  Bona  to  be  worthy  of  belief. The  statement  of  the  defense  that  Mrs.  Bona  waited  for 
seven  years  after  divulging  what  she  knew  about  the  stabbing  incident  is  awry. After  the  incident,  Mrs.  Bona 
immediately gave her statement to the police that petitioner was the one who stabbed the victim. This is evidenced by 
the  Advance  Report[41] dated  3  March  1987  prepared  by  PFC  Benjamin  Boco. It  is  not  true  that  she  waited  for  seven 
years before revealing what she knew. What she did not immediately give to the police was her written statement under 
oath,  because  she  was  fearful  that  something  bad  might  happen  to  her  because  the  suspect  was  still  at  large. She 
explained  she  would  only  give  her  written  statement  when  the  suspect  was  apprehended,  because  the  crime  was  a 
grave offense.[42] This was what she did once petitioner was arrested and jailed. 

She cannot be faulted for doing what she did. Fear of reprisal and the natural reluctance of a witness to get involved in a 
criminal case are sufficient explanations for a witness delay in reporting a crime to the authorities.[43] Initial reluctance to 
volunteer information regarding a crime due to fear of reprisal is common enough that it has been judicially declared as 
not affecting a witness credibility.[44] The fact that Mrs. Bona did not right away submit a written statement to the police 
was  natural  and  within  the  bounds  of  expected  human  behavior.   Her  action  revealed  a  spontaneous  and  natural 
reaction  of  a  person  who  had  yet  to  fully  comprehend  a  shocking  and  traumatic  event.   Besides,  the  workings  of  the 
human  mind  are  unpredictable.   People  react  differently  to  emotional  stress.  There  is  simply  no  standard  form  of 
behavioral  response  that  can  be  expected  from  anyone  when  confronted  with  a  strange,  startling  or  frightful 
occurrence.[45] In her case, Mrs. Bona said she was shocked and lost her composure because that was the first time she 
saw someone being killed in front of her.[46] 

The  defense  further  tries  to  discredit  Mrs.  Bona  by  showing  alleged  inconsistencies  in  her  testimony  regarding  the 
presence  of  petitioner  while  she  was  giving  her Sinumpaang  Salaysay at  the  WPD. The  defense  points  out  that  Mrs. 
Bona contradicted her statement in her Sinumpaang Salaysay that she saw petitioner while she was being investigated 
in the WPD, but in her testimony in court she said she had not seen him in the WPD. As to Mrs. Tan, the defense claims 
that she  did  not see the petitioner  while her statement  was being taken  by the  police  which  is contrary to what was 
stated in her Sinumpaang Salaysay that she saw petitioner while she was giving her statement. 

We  find  these  inconsistencies  to  be  too  trivial  to  diminish  the  credibility  of  these  two  witnesses. From  their 
testimonies in court, it is evident that they saw petitioner in the police station when he was arrested.[47]Whether they 
saw petitioner before, during or after the preparation of their statements is of no moment because they have clearly 
and unequivocally identified petitioner as the person who stabbed the victim. Settled is the rule that 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.[48] 

The  testimonies  of  the  prosecution  eyewitnesses  are  more  convincing  than  those  of  the  supposed  defense 
eyewitnesses (Ricardo de Leon and Remedios Ibajo). Both De Leon and Ibajo are friends of the petitioner.De Leon said 
he was requested by petitioners sister to testify, because petitioner was asking for assistance. Ibajo revealed that she 
knows the relatives of petitioner. The testimonies of close relatives and friends are necessarily suspect.[49] Moreover, it 
has been amply demonstrated that Ibajo has never been a resident of the place where victim was stabbed. 

We find the evidence of the prosecution to be more credible than that adduced by petitioner. When it comes to 
credibility,  the  trial  courts  assessment  deserves  great  weight,  and  is  even  conclusive  and  binding,  if  not  tainted  with 
arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full 
opportunity to observe directly the witnesses deportment and manner of testifying, the trial court is in a better position 
than the appellate court to evaluate testimonial evidence properly.[50] 
 The  Court  of  Appeals further  affirmed the findings  of  the  RTC. In  this  regard,  it  is  settled  that  when  the 
trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon 
this Court. We find no compelling reason to deviate from their findings. 

Petitioner interposes the defenses of denial and alibi. As against the damning evidence of the prosecution, they 
must  necessarily  fail. A  denial  unsubstantiated  by  clear  and  convincing  evidence  is  negative,  self‐serving,  merits  no 
weight in law,  and cannot therefore be given greater  evidentiary  value than the testimony  of  credible  witnesses who 
testify on affirmative matters.[51] 

Further,  denial  cannot prevail over the  positive testimonies of  prosecution witnesses  who were not  shown to 

have any ill motive to testify against appellants. Absence of improper motives makes a testimony worthy of full faith and 
credence.[52] In  this  case,  petitioner  testified  that  he  did  not  know  of  any  reason  why  Mmes.  Bona  and  Tan  testified 
against him.[53] 

Petitioner  likewise  interposes  the  defense  of  alibi. No  jurisprudence  in  criminal  law  is  more  settled  than  that 
alibi is the weakest of all defenses, for it is easy to contrive and difficult to disprove, and for which reason it is generally 
rejected.[54] For the defense of alibi to prosper, it is imperative that the accused establish two elements: (1) he was not 
at the locus delicti at the time the offense was committed; and (2) it was physically impossible for him to be at the scene 
at the time of its commission.[55] Petitioner failed to do so. 

In the case at bar, petitioner avers that he was working when the stabbing happened. He said that it takes him 
twenty minutes by  jeepney  to  travel from his residence to his place of  work  in the Navotas Fish Port,  and that Elcano 
St. where he delivered fish on 2 March 1987 was only one ride away from his house. Thus, it was not possible for him to 
have been at the scene of the crime when the crime was being committed. On top of this, he failed to present witnesses 
like his employer or any of his five companions who was allegedly with him when he went to Elcano St., Divisoria, who 
could testify that he was somewhere else when Rolando Domingo was attacked. 

Anent  the  third  assigned  error,  petitioner  maintains  that  the  prosecution  failed  to  discharge  the  quantum  of 
proof required to support a conviction because it failed to establish all the elements of the crime charged as alleged in 
the information. The information, he states,  accuses him of the crime of murder in conspiracy with Ricardo Lidot and 
two others. Since the testimonies of Mmes. Bona and Tan only show that the assailant, supposedly the petitioner, was 
alone when he attacked the victim then conspiracy was not established as alleged in the information, and he should thus 
be exonerated. 

The information alleged that petitioner, together with Ricardo Lidot and others whose names are still unknown, 
conspired in killing Rolando Domingo. Article 8 of the Revised Penal Code provides that there isconspiracy when two or 
more persons agree to commit a crime and decide to commit it. It is hornbook doctrine that conspiracy must be proved 
by positive and convincing evidence, the same quantum of evidence as the crime itself.[56] Once conspiracy is established, 
all the conspirators are answerable as co‐principals regardless of their degree of participation, for in the contemplation 
of the law, the act of one becomes the act of all, and it matters not who among the accused inflicted the fatal blow to 
the victim.[57] 

  
 Conspiracy is not an element of the crime of murder or homicide. Conspiracy assumes pivotal importance in the 
determination  of  the  liability  of  the  perpetrators.[58] Thus,  if  the  evidence  adduced  by  the  prosecution  fails  to  prove 
conspiracy,  only  those  whose  liability  can  be  established  can  be  held  liable  for  the  crime  charged. In  the  case  under 
consideration,  the  prosecution  was  able  to  prove  that  petitioner  was  the  one  who  stabbed  the  victim. But  since 
conspiracy was not shown in the instant case, the other accused cannot be convicted because their respective liabilities 
were not satisfactorily proved as well. Petitioner alone is liable for the death of the victim. 

We now go to the nature of the crime committed. The information alleged treachery in the commission of the 
crime. As  correctly  found  by  the  trial  court,  treachery  attended  the  killing. There  is  treachery  in  a  sudden  and 
unexpected attack which renders the victim unable to defend himself by reason of the suddenness and severity of the 
attack.[59] The  essence  of  treachery  is  the  sudden  and  unexpected  attack  by  the  aggressor  on  an  unsuspecting  victim, 
depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor, 
and  without  the  slightest  provocation  on  the  part  of  the  victim.[60] In  the  case  at  bar,  the  victim  was  attacked  from 
behind while he was eating. The victim was not able to defend himself or retaliate because the attack was so sudden 
and unexpected. Since treachery was properly alleged in the information, the same can be used to qualify the killing to 
murder. 

Without  a  doubt,  the  intention  of  petitioner  was  to  kill  the  victim. This  intention  was  very  clear  when  he 
treacherously  attacked  the  victim  when  the  latter  was  eating  at  the carinderia. The  number  of  times  (four)  petitioner 
stabbed  the  victim  in  the  chest  area  supports  this  conclusion. The  intent  to  kill  is  shown  by  the  weapon  used  by  the 
offender and the parts of the victims body at which the weapon was aimed.[61] 

The Information likewise alleged the qualifying circumstance of evident premeditation. Evident premeditation, 
however, may not be appreciated where there is no proof as to how and when the plan to kill was hatched or the time 
that  elapsed  before  it  was  carried  out.[62] In  the  case  at  bar,  the  prosecution  failed  to  establish  that  evident 
premeditation attended the killing. 

We now go to the imposition of the penalty. Petitioner is guilty of murder. The crime was committed on March 2, 
1987. At  that  time  the  penalty  for  murder  under  Article  248  of  the  Revised  Penal  Code  wasreclusion  temporal in  its 
maximum  period  to  death. The  penalty  for  murder  is reclusion  perpetua to  death. There  being  neither  mitigating  nor 
aggravating  circumstances,  the  penalty  for  murder  should  be  imposed  in  its  medium  period  or reclusion 
perpetua.[63] Thus,  for  the murder  of  Rolando  Domingo,  there  being  no  other  mitigating  or  aggravating  circumstance 
attending the same, the penalty imposed on petitioner is reclusion perpetua. 

With respect to award of damages, both the trial court and the Court of Appeals did not award any. When death 
occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; 
(2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.[64] 

Civil  indemnity  is  mandatory  and  granted  to  the  heirs  of  the  victim  without  need  of  proof  other  than  the 
commission of the crime.[65] Under prevailing jurisprudence,[66] the award of P50,000.00 to the heirs of the victim as civil 
indemnity is in order.[67] 

  
 As to actual damages, the heirs of the victim are not entitled thereto because said damages were not duly proved
with reasonable degree of certainty.[68] It is necessary for a party seeking actual damages to produce competent proof or
the best evidence obtainable, such as receipts, to justify an award therefor.[69] The hospitalization and funeral expenses
were not supported by receipts. However, the award of P25,000.00 in temperate damages in homicide or murder cases is
proper when no evidence of burial and funeral expenses is presented in the trial court.[70] Under Article 2224 of the Civil
Code, temperate damages may be recovered, as it cannot be denied that the heirs of the victim suffered pecuniary loss,
although the exact amount was not proved.[71]

Moral damages must also be awarded because it is mandatory in cases of murder and homicide, without need of
allegation and proof other than the death of the victim.[72] The award of P50,000.00 as moral damages is in order.

The heirs of the victim are likewise entitled to exemplary damages in the amount of P25,000.00 since the
qualifying circumstance of treachery was firmly established.[73]

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA‐G.R. CR.‐H.C. No. 01056, 
dated 31  August  2005,  is  AFFIRMED  WITH  MODIFICATION.   Petitioner  is  found GUILTYbeyond  reasonable  doubt 
of murder  as  defined  in  Article  248  of the  Revised Penal  Code,  qualified  by treachery.   There  being  no  aggravating  or 
mitigating  circumstance  in  the  commission  of  the  crime,  he  is  hereby  sentenced  to  suffer  the  penalty  of reclusion 
perpetua.  He is ORDERED to pay the heirs of Rolando Domingo the amount of P50,000.00 as civil indemnity, P50,000.00 
as  moral  damages, P25,000.00  as  temperate  damages  and P25,000.00  as  exemplary  damages. Costs  against  the 
petitioner.

  

SO ORDERED. 

  

   MINITA V. CHICO-NAZARIO
Associate Justice 

WE CONCUR: 

  

CONSUELO YNARES‐SANTIAGO 

Associate Justice 

Chairperson   

MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA

Associate Justice Associate Justice
   
 RUBEN T. REYES 

Associate Justice  

ATTESTATION 

I  attest  that  the  conclusions  in the  above  Decision  were  reached  in  consultation  before  the  case  was  assigned  to  the 
writer of the opinion of the Courts Division. 

CONSUELO YNARES‐SANTIAGO 

Associate Justice 

Chairperson, Third Division  

CERTIFICATION  

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified 
that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of 
the opinion of the Courts Division. 

REYNATO S. PUNO 

Chief Justice 

* Justice Danto O. Tinga was designated to sit as additional member replacing Justice Antonio Eduardo B. Nachura per
Raffle dated 12 September 2007.
[1]
Penned by Associate Justice Vicente Q. Roxas with Associate Justices Portia Alio-Hormachuelos and Juan Q. Enriquez,
Jr., concurring; CA rollo, pp. 123-137.
[2]
Records, pp. 293-302.
[3]
Id. at 1.
[4]
Id. at 16.
[5]
TSN, 4 October 1994.
[6]
TSN, 25 October 1994.
[7]
TSN, 28 February 1995.
[8]
TSN, 7 April 1995.
[9]
TSN, 19 May 1995.
[10]
TSN, 7 September 1995.
[11]
TSN, 28 February 1995, pp. 31-32.
[12]
Exh. C; Records, p. 129.
[13]
Exh. D; id. at 130.
[14]
Exh. E; id. at 132-133.
[15]
Exh. G; id. at 136.
[16]
Id. at 137.
[17]
TSN, 16 February 1996.
[18]
TSN, 23 February 1996.
[19]
TSN, 12 July 1996, 9 August 1996.
[20]
TSN, 19 September 1996, 11 December 1996.
[21]
TSN, 7 March 1997.
[22]
Exh. 3; Records, p. 8.
[23]
Exh. 4; id. at 225.
[24]
Exh. 5; id. at 226-227.
[25]
Id. at 234.
[26]
TSN, 7 August 1997.
[27]
TSN, 22 August 1997 (Rebuttal).
[28]
Exh. H; Records, p. 246.
[29]
Id. at 302.
[30]
Id. at 308-309.
[31]
Id. at 310.
[32]
Id. at 313.
[33]
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
[34]
CA rollo, p. 137.
[35]
Id. at 18.
[36]
TSN, 16 February 1996, pp. 5, 9-10.
[37]
Exh. 3; Records, p. 8
[38]
Exh. 4; id. at 225.
[39]
Exh. F; id. at 134.
[40]
CA rollo, pp. 100-101.
[41]
Exh. G; records, p. 136.
[42]
TSN, 25 October 1994, pp. 10-12.
[43]
People v. Hernandez, G.R. No. 139697, 15 June 2004, 432 SCRA 104, 112-113.
[44]
People v. Roma, G.R. No. 147996, September 30, 2005, 471 SCRA 413, 429.
[45]
People v. Dulanas, G.R. No. 159058, 3 May 2006, 489 SCRA 58, 74.
[46]
TSN, 25 October 1994, p. 7.
[47]
TSN, 25 October 1994, pp. 12, 16-17; 28 February 1995, pp. 27, 29 & 36.
[48]
People v. Santiago, 465 Phil. 151, 161 (2004).
[49]
People v. Opelia, 458 Phil. 1001, 1014 (2003).
[50]
People v. Escultor, G.R. Nos. 149366-67, 27 May 2004, 429 SCRA 651, 661.
[51]
People v. Alviz, G.R. Nos. 144551-55, 29 June 2004, 433 SCRA 164, 172.
[52]
People v. Brecinio, 469 Phil. 654, 665 (2004).
[53]
TSN, 19 September 1996, p. 17; 11 December 1996, p. 15.
[54]
People v. Sanchez, 426 Phil. 19, 31 (2002).
[55]
People v. Flora, 389 Phil. 601, 611 (2000).
[56]
People v. Montenegro, G.R. No. 157933, 10 August 2004, 436 SCRA 33, 42.
[57]
People v. Tagana, 468 Phil. 784, 808 (2004).
[58]
People v. Peralta, 134 Phil. 703, 717-718 (1968).
[59]
People v. Tolentino, G.R. No. L-59097, 20 September 1988, 165 SCRA 490, 496.
[60]
People v. Botona, G.R. No. 161291, 27 September 2004, 439 SCRA 294, 301.
[61]
Gorospe v. People, 466 Phil. 206, 216 (2004).
[62]
People v. Agudez, G.R. Nos. 138386-87, 20 May 2004, 428 SCRA 692, 709.
[63]
Arts. 64[1] and 248, Revised Penal Code; People v. Quirol, G.R. No. 149259, 20 October 2005, 473 SCRA 509, 518.
[64]
People v. Beltran, Jr., G. R. No. 168051, 27 September 2006, 503 SCRA 715, 740.
[65]
People v. Tubongbanua, G.R. No. 171271, 31 August 2006, 500 SCRA 727, 742.
[66]
People v. Buban, G.R. No. 170471, 11 May 2007, 523 SCRA 118, 134.
[67]
People v. Pascual, G.R. No. 173309, 23 January 2007, 512 SCRA 385, 400.
[68]
People v. Tubongbanua, supra note 65.
[69]
People v. Jamiro, G.R. No. 117576, 18 September 1997, 279 SCRA 290, 311.
[70]
People v. Dacillo, G.R. No. 149368, 14 April 2004, 427 SCRA 528, 538.
[71]
People v. Surongon, G.R. No. 173478, 12 July 2007, 527 SCRA 577, 588.
[72]
People v. Bajar, 460 Phil. 683, 700 (2003).
[73]
People v. Beltran, Jr., supra note 64.
 

 
 FIRST DIVISION

PAT. EDGARDO HERRERA y G.R. Nos. 119660-61

BALTORIBIO and PAT. REDENTOR
MARIANO y ANTONIO,
Petitioners,
Present:

- versus - PUNO, C.J., Chairperson,

CARPIO,
CORONA,
AZCUNA, and
LEONARDO-DE CASTRO, JJ.

HONORABLE SANDIGANBAYAN
and PEOPLE OF THE PHILIPPINES,
Respondents. Promulgated:
February 13, 2009

X-----------------------------------------------------------------------------------------X

DECISION
AZCUNA, J.:

Petitioners Pat. Edgardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio, together with the other
accused, Pat. Roberto Barrera and Pat. Rodolfo Alcalde, all members of the Paraaque Police Station, were charged with
two (2) counts of murder, FOR THER KILLING OF Shi Shu Yang and George Go y Tan, before public respondent
Sandiganbayan in Criminal Case Nos. 16674 and 16675.
The original informations, both dated December 4, 1990, against the petitioners and two other accused alleged:

In Criminal Case No. 16674:

That on or about the 28th day of December, 1989 in the Municipality of [Paraaque], Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused who were then
public officers, being then members of the Paraaque Police Force, and armed with guns, and conspiring
and confederating and mutually helping and aiding one another, with intent to kill and with treachery
and by taking advantage of their public positions as members of the Paraaque Police Force, then and
there willfully, unlawfully and feloniously shoot one SHI SHU YANG on the different parts of his body,
thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate
cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be
awarded to them under the provision of the Civil Code of the Philippines.

CONTRARY TO LAW.[1]

In Criminal Case No. 16675:

That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were
 then public officers, being then members of the Paraaque Police Force, armed with guns, conspiring and
confederating and mutually helping and aiding one another, with intent to kill and with treachery and by
taking advantage of their public positions as members of the Paraaque Police Force, did then and there
willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN on the different parts of his body,
thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate
cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be
awarded to them under the provision of the Civil Code of the Philippines.

CONTRARY TO LAW.[2]

On March 18, 1992, petitioners and the other accused were arraigned but they pleaded not guilty. Petitioners then filed a
joint petition for bail raising the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the
informations that the crimes were committed by the petitioners in relation to their office citing the case of Bartolome v.
People.[3] On March 18, 1992, public respondent Sandiganbayan ordered the amendment of the informations and stated
that the evidence adduced during the pre-trial of the case and the hearing on the petition for bail shall be deemed
automatically reproduced as evidence during the trial of the case on the merits.

The amended informations, both dated July 15, 1992, against the petitioners and the two accused alleged:

In Criminal Case No. 16674:

That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were
then public officers being then members of the Paraaque Police Force and armed with guns, and
conspiring and confederating and mutually helping and aiding one another, committing the offense in
relation to their public position or office, with intent to kill and with treachery and by taking advantage
of their public positions as members of the Paraaque Police Force, then and there willfully, unlawfully
and feloniously shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious
and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the
provision of the Civil Code of the Philippines.

CONTRARY TO LAW.[4]

In Criminal Case No. 16675:

That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were
then public officers being then members of the Paraaque Police Force and armed with guns, and
conspiring and confederating and mutually helping and aiding one another, committing the offense in
relation to their public position or office, with intent to kill and with treachery and by taking advantage
of their public positions as members of the Paraaque Police Force, then and there willfully, unlawfully
and feloniously shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting
serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to
the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under
the provision of the Civil Code of the Philippines.
 CONTRARY TO LAW.[5]

Arraigned anew on September 18, 1992, petitioners Herrera and Mariano entered their pleas of not guilty[6] and withdrew
their objections to the issue of lack of jurisdiction of public respondent Sandiganbayan over the case and moved that the
proceedings and evidence presented during their petition for bail be adopted in toto. The two other accused, Barrera[7] and
Alcalde, remained at large.

During the pre-trial on March 30, 1993, the parties stipulated that during the commission of the crimes, the petitioners
were public officers. Whereupon, the cases were consolidated and a joint trial on the merits ensued.

The prosecutions evidence consisted of the following:

Reynaldo Ong was the manager of Chow Chow Restaurant which was owned by Spouses George Go, one of the victims,
and Edna Ong Go, located at 5 Country Homes Commercial Center, Dr. A. Santos Avenue, Paraaque, Metro Manila. Ong
was the younger brother of Edna Go. At about 4:00 am of December 28, 1989, Ong heard two explosions. He proceeded
to the third floor of the restaurant to check on what had happened and as he looked down, he saw accused Pat. Roberto
Barrera and his friend lighting firecrackers at the back of restaurant. Ong descended the stairs toward the ground floor of
the restaurant where he saw the victims George Go and Shi Shu Yang. George Go asked for some firecrackers from him
and proceeded to the kitchen to light the firecrackers. From a distance outside the restaurant, accused Barrera
shouted, Pare, meron pa ba?(asking if there are still firecrackers) to which George Go responded, Marami pa. (There are
still plenty.) After George Go responded in the affirmative, accused Barrera went to the restaurant armed with a .38
caliber pistol tucked in his waist. George Go then went upstairs, took his .45 caliber pistol from an attache case, tucked it
in his waist, and went back to the kitchen. Moments later, accused Barrera approached George Go, introduced himself as a
Paraaque policeman, and disarmed him (George Go) of his licensed .45 caliber pistol. Barrera then shouted at his
(Barreras) companion, a policeman, who was upstairs, Ilabas mo iyong mahaba(ordering the companion to bring out the
long firearm) while commanding George Go to come out as he had went to the parking lot to hide there. Ong pleaded with
Barrera and told him that George Go would surface only if Barrera would not shoot him. As soon as George Go emerged
from the parking lot, Barrera said, Tarantado kang Chekwa ka, ako yung nagbigay sa iyo ng sobre (uttering invective
upon the victim with the use of the pejorative term for Chinese as he referred to his Christmas solicitation from the victim
who gave him twenty pesos (P20) and two t-shirts). George Go was quiet. Barrera also demanded that George Go present
the license of his firearm which the latter readily showed. Barrera then told George Go that he would bring the firearm to
the police station for verification. He then called the police station informing them that he had just disarmed George Go.[8]

At about 6:00 a.m. of that same day, George Go and his Taiwanese friend, the victim Shi Shu Yang, were brought to the
Paraaque Police Station. Reynaldo Ong proceeded, but went back to the house to inform Edna Go, wife of George Go, to
go to the police station. When she arrived at the police station, Edna Go saw her husband, who was making a telephone
call, and Shi Shu Yang. She heard Barrera demanding George Go to produce his license to carry a firearm. Barrera also
told George Go to undergo medical examination, but the latter refused. Thus, Barrera, together with the petitioners and
accused Alcalde, shoved George Go to the wall and made him and Shi Shu Yang ride a police car waiting nearby. They
took the victims to the Paraaque Community Hospital for medical examination. Thereafter, the two were brought
to Timothy Street along MultinationalVillage where they were shot to death.[9]

Edna Go also testified that George Go was an agent of Stanley Work Sales and operator of Chow Chow Restaurant. She
said she had spent for the wake and funeral of her husband and, estimated the expenses for the wake to be at around
P10,000 as she was not able to keep the receipts. However, she presented the receipt issued by La Funeraria Paz
amounting to P11,500 as expenses for the casket and funeral services. She stated that she was in a state of shock and
became frightened upon learning of the death of her husband.[10]

Cristina Winterhalter y Siscar, a resident of nearby Saint Anthony Street, witnessed the killing of the two victims with the
use of a pair of binoculars lent to her by a neighbor, as she viewed it from a distance of about 80 to 90 meters. She
testified that at around 11:00 a.m. of December 28, 1989, she was standing by the window, waiting for her daughter and
an Italian neighbor to come home, when she noticed a Ford Fiera patrol van, with Paraaque Police Mobile appearing on
both sides, parked along Timothy Street. From a distance of between 80 to 90 meters, she saw seven persons inside the
van, two seated in front while five stayed at the back. When the van was parked, she saw two men alight from the
backseat, one was in civilian clothes (referring to Pat. Alcalde) and one in police uniform and carrying a rifle (referring to
Pat. Barrera). They were followed by George Go and an unidentified man in black shirt. They took out Shi Shu Yang who
was seated at the back. The one seated at the passenger side was petitioner Herrera while petitioner Mariano was the one
driving the van. Petitioner Mariano went to the front area of the van and wrote something on a piece of paper. Pat Barrera
hit George Go on the face and, together with petitioner Mariano, they fired about 20 successive shots at the victim. They
also kicked Shi Shu Yang and fired about four times. Petitioner Herrera also fired at the victims lying on the
pavement. They placed the bodies of the victims inside the van and headed for Fortunate Village.Winterhalter and a
neighbor went to the crime scene and found bloodstains on the pavement, a set of dentures, and a pair of eyeglasses. Later,
she executed a sworn statement before the NBI to narrate what she witnessed.A diagram (Exhibits L and L-1) was made
to give a clearer picture of the location of her house and that of the crime scene. [11]

Dr. Roberto Garcia, Medico Legal Officer of the National Bureau of Investigation (NBI), conducted an autopsy on the
body of George Go at around 5:30 p.m. of December 28, 1989 at the Rizal Funeral Homes, PasayCity. The Autopsy
Report No. 89-4195 (Exhibit A) showed that George Go sustained eight (8) fatal gunshot wounds on his jaw, chest,
abdomen, and arms, as follows: gunshot wound no. 1 had entry point (4 by 61/2 centimeters) on the right jaw with exit
point (1.8 by 1.5 centimeters) on the left forehead; gunshot wound no. 2 had entry point (0.6 by 1 centimeters) on the
upper left chest right with exit point (1.8 by 1.5 centimeters in diameter) on the upper left back; gunshot wound no. 3 had
entry point (0.6 by 0.8 centimeters) below the left collar bone with exit point (3.2 by 2.8 centimeters) on the upper right
back; gunshot wound no. 4 had entry point (0.5 by 0.7 centimeters) on the upper right chest with exit point (4 by 2.8
centimeters) on upper right back; gunshot wound no. 5 had entry point (0.7 by 1.3 centimeters) on the upper right
abdomen with exit point (1.5 by 1.3 centimeters) on the upper right back; gunshot wound no. 6 had entry point (0.5 by 0.8
centimeters) on the abdomen area which was just above the navel with exit point (2.6 by 1.9 centimeters in diameter) on
the lower right back; gunshot wound no. 7 had entry point (0.6 by 0.8 centimeters) on the lower left abdomen with exit
point on the lower right (2.6 by 1.9 centimeters) on the lower right back; and gunshot wound no. 8 had entry point (0.5 by
0.7 centimeters) on the left arm with exit point (1.8 by 1.6 centimeters) on the left arm. He estimated that the probable
distance from the muzzle of the gun to the victim was about an armslength of 24 inches. He prepared a diagram (Exhibit
B) indicating the different gunshot wounds sustained by the victim and issued a Certificate of Post-Mortem Examination
(Exhibit C). With the trajectory of the bullet, he said that it was possible that after the first shot was fired, the victim
assumed a kneeling position or was lying on the pavement as the assailant continued to fire the successive shots. The body
of the victim was later identified by Edna Go, wife of George Go.

At around 7:00 p.m., Dr. Garcia also conducted an autopsy on the body of Shi Shu Yang in the said funeral parlor. The
Autopsy Report No. 89-4196 (Exhibit D) indicated that Shi Shu Yang sustained three gunshot wounds. He made a
diagram (Exhibit E) identifying the locations of the gunshot wounds and, likewise, issued a Certificate of Post-Mortem
Examination (Exhibit F). Illustrating a distance of about 24 inches, the entry point of gunshot wound no. 1 was at the back
of the head of the victim with no exit point as the deformed bullet was lodged therein. `The entry point of gunshot wound
no. 2 was on the left side of the neck of the victim (0.6 by 0.8 centimeters) and exit point on the right side of the neck (1.2
by 1 centimeter in cross diameter). He concluded that the assailant must have been at the left of the victim when the shot
was fired. As for gunshot wound no. 3, the distance between the muzzle of the gun and the right arm could have been
more than 24 inches and that the assailant was at the oblique front right of the victim.[12]

Edwin Purificando, Senior Forensic Chemist of the NBI, examined the blood type of the victims, as follows, blood type B
for George Go per Biology Report No. B-89-2490 (Exhibit M-2) and blood type A for Shi Shu Yang per Biology Report
No. B-89-2491 (Exhibit M-1). He also analyzed the specimen of the blood obtained by the NBI Duty Chemists, Aida
Pascual and Bella Arriola, from the pavement located along Timothy Avenue, called blood scraping as shown Biology
Examination Report No. B-89-2498 (Exhibit M), and found that it only yielded blood type B which matched with the
blood type of George Go. He repeated the blood scraping procedure and no evidence of blood type A was found Biology
Examination Report No. B-90-15 (Exhibit N and N-1).[13]
Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, testified that on December 28, 1989, acting upon the
requests for paraffin test (Exhibit I and I-1) by P/Cpl. Glen Tiongson and P/Cpl Jose Suarez, respectively, she conducted
the diphenylamine-paraffin tests on the dorsal of the left and right hands of the victims and per Chemistry Report No. C-
89-1605 for George Go (Exhibit H) and Chemistry Report No. C-89-1606 for Shi Shu Yang (Exhibit H-1), they were
found negative of nitrates which proved that the victims never fired a gun.[14]

Teodoro Ubia y Janeo, a Medical Technologist of the NBI, took pictures of the cadaver of George Go (Exhibits K to K-4)
and an unidentified person, later known to be, Shi Shu Yang (Exhibits J to J-2) to show the different locations where the
victims were shot.[15]

Atty. Leoncio Evangelista, an agent of the NBI, conducted investigation on the killing incident.

On the other hand, the evidence for the defense, are as follows:
Rodolfo Ver y Foronda, Fingerprint Examiner II of the NBI, presented the following documents relative to the shooting
incident that resulted in the death of the two victims, to wit; Progress Report dated December 28, 1989 (Exhibits 1 and 1-
a); Initial Investigation Report signed by Col. Rogelio Pureza (Exhibit 2); Request for Paraffin Test dated December 28,
1989 (Exhibit 3); Sworn Statements of Pat Barrera, petitioner Mariano, Pat. Alcalde, and petitioner Herrera (Exhibits 4, 4-
a, 5, 5-a, 6, 6-a, 7, and 7-a); photocopies of a picture of the Paraaque Police van No. 102 (Exhibits 8, 8-a to 8-g) and a
Certification issued by Capt. Abraham Gatchillano dated January 5, 1990 (Exhibits 9 and 9-a).[16]

Col. Rogelio Pureza y Abutan, PNP District Director of the NPD, CAMANABA testified that he approved the Progress
Report dated December 28, 1989 (Exhibits 1 and 1-a) of Rodolfo Ver. The report addressed to the Regional Commander
(Exhibit 11) was based on the investigation conducted on petitioners Herrera and Mariano, Pat. Alcalde, Pat. Barrera, and
Edwin Maquinay, and the report of the investigator on the case. He narrated that at about noontime of December 28, 1989,
Edna Go came to his office requesting Col. Pureza for assistance with regard to her husbands case, but he told her to await
for the outcome of the investigation as the cases for Illegal Possession of Firearms and Resisting Arrest were already filed
with the Prosecutors Office and it would be inappropriate for him to intercede in the case. While he was talking with Go,
SPO4 Ticzon called to inform him about a shooting incident involving the husband of Go. Since he was not sure if George
Go was already dead when the call came in, he did not relay the information to Go. Thereafter, he came to know that
George Go was brought to the Paraaque Community Hospital by petitioners and accused Barrera and Alcalde, together
with one Shi Shu Yang. As a result of the investigation conducted, he and the other police officers filed a case for
homicide against two of their policemen based on the evaluation report of their investigator. He turned over the petitioners
and the accused to the NBI for investigation. The two (2) reports stated that one of the victims was carrying a caliber 45
firearm and that said firearm was forwarded to the PCCI laboratory for verification and also for the purpose of
determining if it was previously involved in a crime and to the Firearms and Explosive Unit for the issuance of a
certification as to the veracity of its license.[17]

SPO4 Glenn Fuentes Ticson testified that on December 28, 1989, he was assigned as Duty Investigator at the CID,
Paraaque Police Station and, as such, was tasked to investigate criminal cases referred to him by their Desk Officer or
immediate supervisor. On December 28, 1989, Cpl. Antonio Batola, Duty Officer, reported to him about a shooting
incident and that the victims were already brought to the Paraaque Community Hospital.He and Pat. Oscar dela Cruz
immediately proceeded to the said hospital and upon arrival, the hospital personnel informed them that the victims were
pronounced dead on arrival. The victims were identified through their identification cards. The bodies of the victims
sustained multiple gunshot wounds and were bathed in blood. When he was informed that the victims were brought by
four (4) policemen, he interviewed two (2) of them (accused Barrera and Alcalde) and they admitted having shot the
victims but claimed self-defense. He called up their Station Commander informing him about the shooting incident
involving Paraaque policemen. He retrieved the service firearms belonging to the two accused and proceeded to the scene
of the crime past noon. The people within the vicinity told him that while they did not see the actual shooting incident,
they heard successive gunshots. The patrol van used by the petitioners and the two accused suspects was left in the
hospital and, later brought to the police station. Ticzon declared further that after the incident, he instructed his co-
investigator to get the statement of the wife of the victim George Go at the Chow Chow restaurant. Prior to the shooting
incident, he was informed that George Go was previously arrested by accused Barrera in connection with a case for Illegal
Possession of Firearms. He was familiar with the people in Timothy street to avoid traffic in going to the police
headquarters. On the same day of the shooting incident, he requested the NBI to conduct an autopsy on the cadaver of the
victims. Thereafter, he prepared two (2) reports which he submitted to Col. Pureza at about 9:00 oclock pm. of December
28, 1989. The pictures of the police van used in transporting the deceased to the hospital were taken at about 3:00 0clock
p.m. at the police station but he had nothing to do with the taking of those pictures. The extent of his investigation with
respect to the shooting incident from the beginning to the end and before the case was turned over to the NBI are all
included in Exhibit 1. upon arrival at the police headquarters coming from the scene of the crime, he reported to Col.
Pureza.Before the turn-over of the case to the NBI, Col. Pureza assigned Pat. De la Cruz and Pat. Octavio to assist him in
the investigation of the incident. As head investigator, his duties include any request for autopsy and paraffin tests but he
did not recommend that paraffin test be conducted upon the two victims. Before the turn-over of this case to the NBI, he
did not gather the firearms involved in this case for ballistic examination. The Cal. 45 firearm recovered from George Go
was in the custody of Col. Pureza which was turned over by Pfc. Biong but he does not know if Col. Pureza signed any
receipt for said firearm. He only saw the serial no. of said firearm, which was tampered, in the office of Col. Pureza in the
afternoon of December 28, 1989.[18]
SPO3 Gil Labay y Cantor declared that on January 8, 1990, he was assigned at the Physical Identification Division of the
PNP Crime Laboratory at Camp Crame, Quezon City and among his duties was to perform macro-etching on firearms and
motor vehicles. On January 8, 1990, he examined one (1) Cal. 45 bearing serial no. 198842 (Exhibit 16). His findings
showed that there were signs of filing and grinding on the metal surface where the serial no. is located. His examination
was based upon the letter-request of the Station Commander of the Paraaque police station (Exhibit 17). Said request was
received by their duty officer but they did not retain a copy of the receipt that was issued to the requesting party. He does
not know if said firearm was first submitted to the PC Crime Laboratory and said firearm was received by one Pat.
Bustillo (Exhibit 18-a). the serial number of the firearm was tampered and he did not see the original serial number of the
said firearm. In the course of his examination, he could not determine the approximate period of time when the allege.d
tempering of the firearm was made because of the super-imposition of the number. He did not verify from the Firearms
and Explosive Unit whether the firearm was licensed or not.[19]

Testifying in his defense, petitioner Redentor Mariano declared that on December 28, 1181, he was connected with the
Paraaque Police Station and assigned with the Mobile Patrol Division, with his tour of duty being from 6:00 oclock
p.m. to 6:00 oclock a.m. At about 5:30 oclock a.m. in the morning of December 28, 1181, he received a radio message
from their radio operator to proceed to the police head quarters to assist accused Barrera in bringing persons for medical
examination. Upon arrival at the police headquarters, accused Alcalde and Barrera alighted from the mobile patrol van
while he stayed inside the mobile car. At about 10:30 oclock a.m. of the same day, accused Alcalde, Barrera, Herrera and
himself brought two persons to the Paraaque Community Hospital. In going to the said hospital, they passed
through Fortunate Village and MultinationalVillage and, upon arrival at the hospital, accused Alcalde and Barrera
accompanied the two persons. At about 11:00 oclock a.m., on their way back to the Paraaque police station, he heard
accused Alcalde saying George, ano ka ba, bitiwan mo ang baril mo and not long after, he heard successive shots. When
he looked back, he saw George Go grappling for the possession of a firearm with accused Alcalde. He stopped the van
and alighted in order to pacify what was happening inside the van but he heard again successive shots and thereafter, he
saw the two Chinese nationals fall inside the van bathed with blood. He told his companions to bring the victims to the
hospital and later informed their Chief of Police about the incident. Upon arrival at the hospital, he told his companions to
request the hospital personnel to get the two dead persons inside the van. After the incident, he was investigated and his
statement was taken.[20]

On cross-examination, he declared that the reason why the two Chinese nationals were brought to the hospital in the
morning of December 28, 1181 for medical examination was because he learned that there was a case filed against George
Go. In going to the hospital, he was in front of the van just besides the driver, while accused Alcalde, Barrera, George Go
and the latters companion were at the back. He and the driver were both armed with cal. 38 while accused Alcalde was
armed with M-16 armalite rifle and accused Barrera was armed with a Cal. 38. While inside the van, George Go was
handcuffed while his companion was not. Accused Alcalde and Barrera were seated fronting the two Chinese
nationals. The distance from the seat where accused Alcalde and Barrera were seated to the seat where the two victims
were seated would be more or less 2 feet but there was a gap between the knees of the passengers seated which was about
12 inches. From the time he heard the first shot up to the time the police van stopped, they had traveled more or less 5 to
10 meters. He was shocked when he heard the first shot and when he looked back, he saw George Go trying to grab the
firearm of the accused Alcalde by holding the butt and almost the muzzle of the firearm. He did not see the finger of
accused Alcalde on the trigger guard of his firearm immediately after he heard the series of shots because the incident
happened too fast. While at the police headquarters, he asked accused Alcalde and Barrera what happened and they told
him that George Go tried to grab the firearm of accused Alcalde but he was not able to ask them who shot George Go.[21]

In the morning of December 21, 1181, they were submitted for paraffin tests at the PNP Crime Laboratory and with
respect to him, the findings was negative but he does not know what was the result of the findings with respect to accused
Barrera and Alcalde. They left the hospital before 1:00 oclock p.m. and it was only a matter of minutes before they
reached Multinational village. The investigator did not take photographs at the scene of the incident at that time. in the
night of march 3, 1111, Mrs. Edna Go came to see him at Camp Bicutan and asked him why the other policemen did not
see her when in fact an agreement that the case be settled before the NAPOLCOM had been reached.

Dr. Frederick Singson y Soliven, Resident Physician of the Paraaque Community Hospital testified that on December 28,
1181, he examined George Go and found out that the latter was positive for alcohol breath but no signs of physical
injuries. At about 11:45 a.m. of the same day, George Go was brought back to the hospital with six gunshot wounds and
was declared dead on arrival (Exhibit 11-a). He also treated accused Herrera on the same day and found out that said
patient was negative of alcohol breath and had a linear abrasion which was 1 cm. in size (Exhibit 20-a). He was not the
one who prepared the entries in Exhibit 11-a and there was no initial of the person who made the handwritten notations
therein. George Go was brought to the hospital by the policemen and one of them was accused Herrera but he did not ask
the policemen the purpose why George Go was to be examined. He did not take the blood chemistry of George Go to
determine whether alcohol existed in his blood. He admitted that he was not the one who wrote the notations of the dorsal
portion of Exhibit 20. The first portion of the medical report of George Go was written by Dr. Bautista and the lower
portion was written by him (Exhibit x and y). According to accused Herrera, the abrasion inflicted on his neck was due to
an alleged scuffle with somebody but said injury could also be self-inflicted.[22]

SPO2 Armand Octavio, a member of the Paraaque police Station testified that on December 28, 1181, he was instructed to
take the statement of accused Barrera (Exhibit 21, 21-a and 21-b). He also received an investigation report from the office
of the Investigation Division signed by SPO3 Ticzon and Col. Pureza. Aside from these reports, he was also furnished a
certification from the Firearms and Explosive Unit and an investigation report regarding the charge for Illegal Possession
of Firearms against accused George Go.[23]

Testifying in his defense, petitioner Edgardo Herrera declared that he had been a member of the Paraaque Police
Station. On December 28, 1181, he reported at the police headquarters and his tour of duty was from 6:00 oclock
p.m. to 6:00 oclock a.m. and his companions were accused Mariano and Alcalde. At about 6:00 oclock a.m. of December
28, 1181, they received a radio message from their headquarters, directing them to report to the Chief of Police. Upon
arrival at the police headquarters, their Desk Officer ordered them to bring a certain George Go to
the Paraaque Community Hospital for medical examination. Before George Go was brought to the hospital, he was very
unruly at the police headquarters and refused to be brought to the hospital. On their way to the hospital, they took Sucat
road and proceeded towards Fortunata Village and then to MultinationalVillage to avoid traffic jams. After the
examination of George Go, they brought him back to the police headquarters but upon reaching Timothy
Street in Multinational Village, a shooting incident happened. While he was at the steering wheel, he heard accused
Alcalde saying George, bitiwan mo ang baril ko and not long after, he heard a gunshot. He looked back and when he saw
that the muzzle of an Armalite rifle was almost at his back, he tried to parry it but it went off successive shots. He
immediately jumped out of the vehicle and pulled out his firearm and saw the two Chinese nationals already lying on the
floor of the police van. He immediately drove the police van and brought the victims back to
the Paraaque Community Hospital. After the incident, he was investigated and his statement was taken (Exhibits 7 and 7-
a). He was also subjected to paraffin tests and the result was negative.[24]

On cross-examination, he declared that he did not see who placed handcuffs on the hands of George Go but when he saw
the latter seated at the back of the police van, he was not handcuffed. Before they brought George Go to the hospital, he
saw Gos wife who was insisting to go with them but George Go did not allow her and, instead, he took along his
Taiwanese friend, one Shi Shu Yang. Apart from George Go and Shi Shu Yang, there were four (4) of them who boarded
the police van and alighted at the hospital but did not go back with them to the police headquarters. All of them, except
Maquinay, were armed. Being the driver of the police van for almost a year, he was familiar with the different roads
coming from the police station to the Paraaque Community Hospital. In fact, there are two routes in going to the said
hospital, one of which is Dr. Santos Avenue up to Sucat road and other is thru Fortunata Village and then to Multinational
Village. There are houses and business establishments along Dr. Santos Ave. while there are few houses and unfinished
structures along Timothy Street in Multinational Village. He was the one who decided to take Multinational Village in
going back to the police headquarters to avoid traffic. The road leading to Fortunata Village is not a bumpy road. In fact,
he can reach the police station from the hospital if he passes thru Multinational Village without passing thru Timothy
Street. He claimed that George Go and Shi Shu Yang were not forced to go down by accused Barrera and Alcalde from
the police van when it passed thru Timothy Street. After hearing the gunshots, he stopped the vehicle. When they went
back to the scene of the crime, he saw blood dripping and blood stains on the sidewalk.[25]

On December 13, 1994, public respondent Sandiganbayan[26] convicted each of the petitioners of two (2) counts of
murder. The dispositive portion of its Decision reads as follows:

WHEREFORE, after joint trial on the merits in the above-numbered cases, judgment is hereby rendered
in the following:

I. In Crim. Case No. 16674 accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio are
hereby found guilty beyond reasonable doubt as co-principals in the offense of Murder, as defined and
penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic
aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in
band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused
is hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the accessory penalties
of imposed by law; to indemnify, jointly and severally, the heirs of the late George Go in the amounts of
P11,500.00 as actual damages, plus P500,000.00 in the form of unrealized earnings and income.

II. In Crim. Case No. 16675 accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio
are herby found GUILTY beyond reasonable doubt as co-principals in the offense of Murder, defined
and penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic
aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in
band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused
is hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the accessory penalties
of [i]mposed by law; to indemnify, jointly and severally, the heirs of the late Shi Shu Yang in the
amounts of P50,000.00;

III. Both accused to pay their proportionate share of the costs of these actions. [27]

On March 28, 1995, public respondent Sandiganbayan denied petitioners joint motion for reconsideration. On April 3,
1995, petitioner Herrrera filed a notice of appeal and thereafter on May 30, 1995, together with petitioner Mariano, he
filed a petition for review on certiorari with this Court alleging the following grounds:

1. THE RESPONDENT SANDIGANBAYAN ERRED IN CONVICTING THE PETITIONERS FOR

MURDER UNDER THE AMENDED INFORMATIONS;

2. THE RESPONDENT SANDIGANBAYAN ERRED IN REFUSING TO ALLOW THE

PETITIONERS TO CONDUCT FURTHER CROSS EXAMINATION ON PROSECUTION
WITNESS WINTERHALTER;

3. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING

THAT THE TESTIMONY OF ALLEGED EYEWITNESS WINTERHALTER WAS WANTING
IN CREDIBILITY;

4. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING

THAT PROSECUTION WITNESS NBI MEDICO-LEGAL OFFICER AND HIS REAL
EVIDENCE SUPPORT THE THEORY OF THE DEFENSE;
 5. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING
THAT THERE WAS TOTAL ABSENCE OF EVIDENCE TO SUPPORT CONSPIRACY;

6. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING

THAT THE PETITIONERS ARE ENTITLED TO THE PRESUMPTION OF REGULARITY IN
THE PERFORMANCE OF OFFICIAL ACTS; AND

7. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING

THAT THE EVIDENCE OF THE PROSECUTION FAILED TO ESTABLISH THE GUILT OF
THE PETITIONERS BEYOND REASONABLE DOUBT.
The Court affirms the conviction.

First. Petitioners insist that respondent Sandiganbayan erred in convicting them for the crime of murder under the
amended informations as they had earlier been arraigned under the original informations for murder and their
rearraignment under the amended informations placed them in double jeopardy.

The rule on double jeopardy does not apply. Public respondent Sandiganbayan ordered the amendment of the
informations and made it of record that the evidence adduced during the pre-trial of the case and the hearing on the
petition for bail shall be deemed automatically reproduced as evidence during the trial of the case on the merits. Double
jeopardy did not attach by virtue of petitioners plea of not guilty under the amended information. For a claim of double
jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge
sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3)
there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise
dismissed or terminated without his express consent.[28]

In the present case, petitioners and the other accused pleaded not guilty to the original informations. Thereafter, at
the instance of the petitioners, through a joint petition for bail, they raised the issue of lack of jurisdiction on the ground
that the prosecution failed to allege in the informations that the crimes were committed in relation to their office. On the
same day, respondent court ordered the amendment of the informations accordingly. Thus, the first requirement for double
jeopardy to attach, that is, that the informations against the petitioners were valid, has not been complied with.

Likewise, the fourth element was lacking. Petitioners cannot be validly convicted on the basis of the original
information as the prosecution failed to allege in the informations that the crimes were committed in relation to their
office. Petitioners were thus not placed in danger of being convicted when they entered their plea of not guilty to the
insufficient information. Moreover, there was no dismissal or termination of the case against petitioners.
 Furthermore, it was well-within the power of public respondent Sandiganbayan to order the amendment of the
information under Section 4, Rule 117 of the Rules on Criminal Procedure which states that if the motion to quash is
based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an
amendment be made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall
be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution
fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.
Second. Petitioners make much of the fact the public respondent Sandiganbayan should have allowed their
counsel to conduct further cross-examination on prosecution witness Winterhalter.

Rule 132, Section 6 of the Revised Rules on Evidence provides that upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to any matter stated in the direct examination, or
connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest
or bias or the reverse, and to elicit all important facts bearing upon the issue. The cross-examination of a witness is a right
of a party against whom he is called. Article III, Section 14(2) of the Constitution states that the accused shall have the
right to meet the witnesses face to face. Rule 115, Section 1(f) of the Revised Rules of Criminal Procedure also states that,
in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against
him. Indeed, petitioners counsel has conducted an extensive cross-examination of witness Winterhalter on the scheduled
dates of hearing. Petitioners, therefore, cannot claim there has been any procedural infirmity in the proceedings.

Moreover, the trial court has the power to direct the course of the trial either to shorten or to extend the direct or
cross examination of a counsel. Under Rule 133, Section 6 of the Revised Rules on Evidence, the court may stop the
introduction of further testimony upon any particular point when the evidence upon it is already so full that more
witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be
exercised with caution. Thus, it is within the prerogative of the trial court to determine when to terminate the presentation
of the evidence of the prosecution or the defense.

Third. Petitioners attempt to destroy the credibility of prosecution witness Winterhalter fails. The trial court had
the opportunity to observe first-hand the demeanor and deportment of the witnesses, and, therefore, its findings that the
witnesses for the prosecution are to be believed over those of the defense are entitled to great weight. Winterhalter
recognized the petitioners as the ones who cooperated with Pat. Barrera in killing the victims. She saw the events
unfolding with the use of her binoculars 80-90 meters away. She established the identity of the petitioners as the
companions of Pat. Barrera when he effected the killing. It has been ruled that findings of fact of the trial court on
credibility of witnesses should be accorded the highest respect. The Court has refrained from interfering with the
judgment of the trial court in passing on the credibility of witnesses unless there appears on record some fact or
circumstance of weight and influence which has been overlooked or the significance of which as been misapprehended or
misinterpreted. None exists in this case.

After the incident, Winterhalters neighbor, who was also a foreigner, has been receiving death threats. She herself
has been getting death threats too, yet she voluntarily testified in order to shed light on the commission of the crime. In
fact, she did not even know the two victims. Indeed, where there is nothing to indicate that a witness was moved by
improper motives, his positive and categorical declarations on the witness stand, made under solemn oath, should be given
full faith and credence. It has not been shown that Winterhalter has any reason to falsely implicate petitioners.

Winterhalter narrated that Pat. Barrera and Pat. Alcalde, together with petitioners, were responsible for the death
of the victims. This was confirmed by the post mortem report prepared by Dr. Roberto Garcia, medico legal officer of the
NBI, showing the gunshot wounds on the different parts of the victims body.

Fourth. Petitioners would persuade the Court that the testimony of the NBI-Medico Legal Officer, a prosecution
witness, supports the theory of the defense that they acted in self-defense.

This argument cannot stand. By invoking the justifying circumstance of self-defense, petitioners assume the onus
of proving: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel the unlawful
aggression; and (3) lack of sufficient provocation on the part of the person defending himself. Petitioners failed to
discharge this burden.

To proceed with the argument that there was unlawful aggression by the two deceased who tried to get the pistol
tucked in the waist of one of the police officers, petitioners should prove that they used reasonable means in repelling the
aggression. Considering that both deceased where handcuffed and unarmed and had restricted movements, it could only
mean that the perceived threat to petitioners lives were not sufficiently serious, in which case they were not justified in
shooting the hapless victims who were unarmed. Petitioners could have simply subdued the two victims in a manner as to
engage them in a fight without necessarily killing them. Moreover, the autopsy reports showing the extent of the wounds
sustained by George Go and Shi Shu Yang tend to discredit the version of the defense.

Fifth. Petitioners assert that there was total absence of evidence to support the theory that conspiracy attended the
commission of the crime.

Conspiracy can be inferred from the acts of the accused which clearly manifest a concurrence of wills, a common
intent or design to commit a crime. The familiar rule in conspiracy is that when two or more persons agree or conspire to
commit a crime, each is responsible, when the conspiracy is proven, for all the acts of the others, done in furtherance of
the conspiracy.[29] In this case, petitioner Herrera drove the vehicle along Timothy Street to a place which was less
conspicuous to passersby. There, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the two victims from the
back portion of the van in order to perpetuate the killing. Petitioner Mariano alighted from the right front seat of the van
and stood beside Pat. Alcalde and Pat. Barrera who began shooting the victims. According to Winterhalter, petitioner
Mariano even appeared to be writing something on a sheet of paper immediately before the shooting, although it cannot
be determined with certainty as to whether he was making an inquiry or merely noting the names of the victims. While it
was Pat. Barrera who actually shot the two victims, the evidence showed a common design on the part of both petitioners
as they did not do anything to prevent him from killing the victims, thus, indicative of the fact that they are in unison with
the criminal design of the Pat. Barrera. Petitioner Herrera alighted form the van without doing anything to prevent the
killing, and worse, after the killing took place along the street, petitioner Herrera even helped carry the two victims into
the van while petitioner Mariano, the driver, remained in the vehicle during the incident. Consequently, applying the rule
that the act of one is the act of all, petitioners are thus as guilty as Pat. Barrera and Pat. Alcalde. In fact, conspiracy need
not be established by direct evidence but may be inferred from the surrounding circumstances.

Sixth. Intertwined with their argument that they were acting in self-defense, petitioners want this Court to
appreciate the presumption of regularity in the performance of their official acts.

This contention has no merit. In order to consider the defense of fulfillment of a duty, it must be shown that: (1) the
accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the
offense committed is the necessary consequence of the due performance of duty or the lawful exercise of a right or
office.[30] There was no showing that petitioners should resort to inflicting injuries and even to the extent of killing the
victims as there was no resistance at all from them when they were apprehended. The two victims were handcuffed and
unarmed while the petitioners and the other police officers were armed with pistols and a rifle. Aida Veloria Magsipoc,
Supervising Forensic Chemist of the NBI, per Chemistry Report No. C-89-1606, conducted the paraffin test on George
Go and Shi Shu Yang which yielded negative results, thus showing that the victims never fired a gun and were totally
defenseless in the face of the fully armed police officers.

Petitioners anchor their argument that they merely acted in self-defense. This contention has no merit. The
accused who invokes self-defense thereby admits having killed the victim, and the burden of evidence is shifted on him to
prove, with clear and convincing evidence, the confluence of the following essential elements: (1) unlawful
aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on
the part of the person defending himself.[31]
 Moreover, the nature and number of wounds inflicted by the accused are constantly and unremittingly considered
as important indicia which disprove a plea of self-defense or defense of stranger because they demonstrate a determined
effort to kill the victim and not just defend oneself.[32] The victims were repeatedly shot at close range and on vital parts of
their bodies, thus indicia that the police officers really intended to kill them. Clearly, the presumption of regularity in the
performance of official duties on the part of the petitioners and the other police officers does not apply.

Seventh. Petitioners maintain that the prosecution failed to establish their guilt beyond reasonable doubt.

On the contrary, the killing of the two victims was proved to have been committed with the qualifying circumstance of
treachery. The essence of treachery is a deliberate and sudden attack, affording the hapless, unarmed and unsuspecting
victim no chance to resist or to escape. Frontal attack can be treacherous when it is sudden and unexpected and the victim
is unarmed. What is decisive is that the execution of the attack made it impossible for the victim to defend himself/herself
or to retaliate.[33]

The records are extant on the findings of respondent Sandiganbayan that when petitioner Herrera drove the patrol
car along Timothy Street to an practically deserted area and isolated from traffice and pedestrians, Pat. Alcalde, Pat.
Barrera, and petitioner Mariano brought out the two victims from the back portion of the patrol car in order to eventually
salvage them which showed that all the police officers had a community of criminal design. Petitioner Mariano mad the
pretense of writing down something prior to the shooting incident. It would appear that he was faking an alleged
interrogation or trying to get the name of Shi Shu Yang, whose identity was not immediately known, yet the fact remains
that he did not do anything to prevent the killing and even helped in loading the body of George Go inside the patrol car.

Clearly, the elements of murder have been proven: 1). that the two victims were killed; 2). that petitioners and the
two other accused killed the victims; 3). that the killing was attended by the qualifying circumstance of treachery
committed by the petitioners and the two other accused who conspired together in killing the victims; and 4). that the
killing was not parricide or infanticide.

Eighth. Public respondent Sandiganbayan did not grant any award of damages in favor of the heirs of Shi Shu
Yang and George Go y Tan. When death occurs due to a crime, the following damages may be awarded: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary
damages; and (5) temperate damages.[34]

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the
crime. Under prevailing jurisprudence, the award of P50,000 to the heirs of the victims as civil indemnity is in order.[35] In
cases of murder and homicide, moral damages may be awarded without need of allegation and proof of the emotional
suffering of the heirs, other than the death of the victim, since the emotional wounds from the vicious killing of the
victims cannot be denied. Thus, the award of P50,000 is proper.[36]

As to the award of actual damages, Edna Go testified that she incurred funeral expenses of
P11,500. Moreover, the award of exemplary damages of P25,000 is proper since the qualifying circumstance of treachery
attended the killing of the victims. Article 2230 of the Civil Code allows the award of exemplary damages as part of the
civil liability when the crime was committed with one or more aggravating circumstances. The term aggravating
circumstance as used therein should be construed in its generic sense since it did not specify otherwise.[37]

WHEREFORE, the petition is DENIED for lack of showing that public respondent Sandiganbayan committed any
reversible error. The Decision of public respondent Sandiganbayan, dated December 13, 1994, finding petitioners Pat.
Eduardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio guilty beyond reasonable doubt as co-principals for
two (2) counts of murder and sentencing each of them to suffer the penalty ofreclusion perpetua with the accessory
penalties of civil interdiction during the time of their sentence and perpetual absolute disqualification for public office
is AFFIRMED WITH MODIFICATION. Additionally, petitioners are ORDERED to pay the heirs of Shi Shu Yang
and George Go y Tan each in the amount of P50,000 as civil indemnity, P50,000 as moral damages, P11,500 for actual
damages, and P25,000 as exemplary damages. Costs against the petitioners.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice
 TERESITA J. LEONARDO-DE CASTRO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
Records, Vol. 2, p. 6.
[2]
Id., 8.
[3]
G.R. No. L-64548, July 7, 1986, 142 SCRA 459. In this case, therein accused, Rolando Bartolome y Perez, Senior
Labor Regulation Officer and Chief of the Labor Regulations Section, and Elino Coronel y Santos, Labor
Regulation Officer, both of the Ministry of Labor (now Department of Labor and Employment [DOLE]), were
charged with the crime of falsification of official document penalized under Article 171, paragraph 4 of the
Revised Penal Code (i.e., Bartolome made untruthful statements in his Personal Data Sheet [Civil Service Form
No. 212] by making it appear that he was a 4thYear AB student at the Far Eastern University (FEU) and that he
had taken and passed the Career Service (Professional) Qualifying Examination on May 2, 1976 in Manila even if
his rating was 73.35%). The Court declared the proceedings in the Sandiganbayan to be null and void ab initio on
the ground that said court had no jurisdiction over the case. It explained that there was no showing that the alleged
falsification was committed by therein accused, if at all, as a consequence of, and while they were discharging,
official functions. The information set forth therein did not allege that there was an intimate connection between
the discharge of official duties and the commission of the offense. Therefore, since the alleged falsification was
not an offense committed in relation to the office of the accused, it did not come under the jurisdiction of the
Sandiganbayan.
[4]
Records, Vol. 2, p. 1.
[5]
Records, Vol. 2, p. 4.
[6]
Records, Vol. I, pp. 105-106.
[7]
Pat. Roberto Barrera was later apprehended and trial of the case against him proceeded. In a Decision dated January 15,
2004, the Sandiganbayan convicted him of two counts of murder and sentenced him to suffer the penalty
of reclusion perpetua and to pay civil indemnity and damages. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in the following:

(1) In Crim. Case No. 16674, the Court finds the accused Pat. Roberto Barrera guilty beyond reasonable
doubt of the crime of murder defined in and penalized by Article 248 of the Revised Penal Code, as
amended, and hereby sentences him to suffer the penalty of reclusion perpetuawith the accessory
penalties of civil interdiction during the time of his sentence and perpetual absolute disqualification for
public office.
 (2) In Crim. Case No. 16675, the Court finds the accused Pat. Roberto Barrera guilty beyond reasonable
doubt of the crime of murder defined in and penalized by Article 248 of the Revised Penal Code, as
amended, and hereby sentences him to suffer the penalty of reclusion perpetuawith the accessory
penalties of civil interdiction during the time of his sentence and perpetual absolute disqualification for
public office.

Accused Barrera is further ordered to pay the legal heirs of George Go and Shi Shu Yang the amount of
fifty thousand pesos (P50,000.00) each for moral damages and fifty thousand pesos (P50,000.00) each as
indemnity for death; and, to pay eleven thousand five hundred pesos (P11,500.00) as actual damages and
one million four hundred thirty three thousand four hundred eighteen pesos (P1,433,418.00) for loss of
earnings to the heirs of George Go.
The period within which the accused Roberto Barrera was detained at the City Jail shall be credited to
him in full as long as he agrees in writing to abide by and follow strictly the rules and regulations of the
said institution.

Costs against the accused.

SO ORDERED. (Rollo, pp. 273-274).

Per records of the case, while accused Barrera filed a notice of appeal, no further pleading was thereafter filed.
[8]
TSN (Reynaldo Ong), July 14, 1993, pp. 3-19.
[9]
TSN (Edna Go), June 10, 1992, pp. 4-22.
[10]
TSN (Edna Go), March 31, 1993, pp. 4-10.
[11]
TSN (Cristina Winterhalter), April 3, 1992, pp. 2-36.
[12]
TSN (Dr. Roberto Garcia), March 25, 1992, pp. 3-41.
[13]
TSN , April 3, 1992, pp. 37-46.
[14]
TSN, April 1, 1992, pp. 4-18.
[15]
TSN, April 1, 1992, pp. 18-25.
[16]
TSN (Rodolfo Ver), September 29, 1993, pp. 12.
[17]
TSN, September 29, 1993, pp. 14-18.
[18]
TSN, September 30, 1993, pp. 4-19.
[19]
TSN, October 27, 1993, pp. 4- 11.
[20]
TSN, January 12, 1994, pp. 3-11.
[21]
TSN, January 12, 1994, pp. 12-36.
[22]
TSN, April 15, 1994, pp. 3- 14.
[23]
TSN, April 15, 1994, pp. 15-21.
[24]
TSN, April 15, 1994, pp. 22-30.
[25]
TSN, April 15, 1994, pp. 31-47.
[26]
Per Justice Romeo M. Escareal (Chairman, Second Division) and concurred in by Justice Augusto M. Amores and
Justice Minita Chico-Nazario, now an Associate Justice of this Court.
[27]
Rollo, pp. 92-93.
[28]
Amadore v. Romulo, 466 SCRA 397 (2005); Lasoy v. Zenarosa, 455 SCRA 360 (2005).
[29]
People v. Masagnay, 431 SCRA 572 (2004).
[30]
Angcaco v. People, G.R. No. 146664, February 28, 2002, 378 SCRA 297.
[31]
People v. De los Reyes, 430 SCRA 166.
[32]
Cabanlig v. Sandiganbayan, 464 SCRA 324.
[33]
People v. Tolentino, G.R. No. 176385, February 26, 2008.
[34] People v. Beltran, Jr., G.R. No. 168051, September 27, 2006, 503 SCRA 715.
[35] Santos v. People, G.R. No. 173282, March 4, 2008.
[36] People v. Villa, G.R. No. 179278, March 28, 2008.
[37] People v. Eling, G.R. No. 178546, April 30, 2008.

 
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 178300 March 17, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA and JOSELITO FLORES y VICTORIO, Accused-
Appellants.

DECISION

CHICO-NAZARIO, J.:

For review is the Decision,1 dated 14 August 2006, and Resolution,2 dated 18 October 2006, of the Court of
Appeals in CA-G.R. CR-H.C. No. 02301 affirming with modifications the Decision,3 dated 26 February 2002, of
the Regional Trial Court (RTC), Branch 12, Malolos, Bulacan, in Criminal Case No. 1611-M-99 finding herein
accused-appellants Domingo Reyes y Paje (Reyes), Alvin Arnaldo y Avena (Arnaldo) and Joselito Flores y
Victorio (Flores) guilty of the special complex crime of kidnapping for ransom with homicide and imposing upon
each of them the capital punishment of death.

The facts culled from the records are as follows:

On 11 August 1999, an Information4 was filed before the RTC charging appellants with the special complex
crime of kidnapping for ransom with homicide. The accusatory portion of the information reads:

The undersigned State Prosecutor of the Department of Justice hereby accuses Domingo Reyes y Paje, Alvin
Arnaldo y Avena and Joselito Flores y Victorio of the crime of kidnapping for ransom with homicide defined and
penalized under Article 267 of the Revised Penal Code, as amended, committed as follows:

That on or about 11:00 p.m. on July 16, 1999, at Sitio Lambakin, barangay Sto. Cristo, San Jose del Monte,
Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and mutually helping one another and grouping themselves together with Juanito Pataray y
Cayaban, Federico Pataray y Cabayan and Rommel Libarnes y Acejo, who are still at large, did then and there
willfully, unlawfully and feloniously, by means of force and intimidation and with use of firearms, carry away and
deprive Robert Yao, Yao San, Chua Ong Ping Sim, Raymond Yao, Ronald Matthew Yao, Lennie Yao,
Charlene Yao, Jona Abagatnan ang Josephine Ortea against their will and consent on board their Mazda MVP
van for the purpose of extorting money in the amount of Five Million Pesos (P5,000,000.00), that during the
detention of Chua Ong Ping Sim and Raymong Yao, said accused with intent to kill, willfully and unlawfully
strangled Chua Ong Ping Sim and Raymond Yao to death to the damage and prejudice of their heirs in such
amount as may be awarded to them by this Honorable Court.

During their arraignment,5 appellants, assisted by a counsel de oficio, pleaded "Not guilty" to the charge. Trial
on the merits thereafter followed.

The prosecution presented as witnesses Jona Abagatnan (Abagatnan), Robert Yao (Robert), Yao San, Police
Officer 3 (PO3) Alex Alberto, PO3 Roberto Jabien, Atty. Florimond Rous (Atty. Rous) and Atty. Carlo Uminga
(Atty. Uminga). Their testimonies, taken together, attest to the following:

The Yao family is composed of Yao San (father), Chua Ong Ping Sim (mother), Robert and Raymond
(children), Lenny (daughter-in-law, wife of Robert), Matthew and Charlene (grandchildren), and Jona
Abagatnan and Josephine Ortea (housemaids). The Yao family owns and operates a poultry farm in Barangay
Santo Cristo, San Jose del Monte, Bulacan.

On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda MVP van, arrived at the their poultry
farm in Barangay Sto. Cristo, San Jose del Monte, Bulacan. Yao San alighted from the van to open the gate of
the farm. At this juncture, appellant Reyes and a certain Juanito Pataray (Pataray) approached, poked their
guns at Yao San, and dragged him inside the van. Appellant Reyes and Pataray also boarded the van.
Thereupon, appellants Arnaldo and Flores, with two male companions, all armed with guns, arrived and
immediately boarded the van. Appellant Flores took the driver’s seat and drove the van. Appellants Reyes and
Arnaldo and their cohorts then blindfolded each member of the Yao family inside the van with packaging tape.6

After about 30 minutes of traveling on the road, the van stopped. Per order of appellants and their cohorts,
Chua Ong Ping Sim, Robert, Raymond and Jona Abagatnan (Abagatnan) stepped out of the van with
appellants Reyes and Arnaldo, Pataray and one of their male companions.7 Appellant Flores, with the other
male companion, drove the van with the remaining members of the Yao family inside the vehicle.8

Later, the van stopped again. Appellant Flores and his male companion told Yao San to produce the amount of
five million pesos (P5,000,000.00) as ransom in exchange for the release of Chua Ong Ping Sim, Robert,
Raymond and Abagatnan. Thereafter, appellant Flores and his male companion left the van and fled; while
Yao San, Lenny, Matthew, Charlene and Josephine remained inside the van. Upon sensing that the
kidnappers had already left, Yao San drove the van towards the poultry farm and sought the help of relatives.9

Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan were taken on foot by appellants Reyes
and Arnaldo, Pataray and one male companion to a safe-house situated in the mountainous part of San Jose
Del Monte, Bulacan where they spent the whole night.10

On the morning of the following day, at around 4:00 a.m., appellants and their cohorts tried to contact Yao San
regarding the ransom demanded, but the latter could not be reached. Thus, appellants instructed Abagatnan to
look for Yao San in the poultry farm. Appellants Reyes and Arnaldo and one male companion escorted
Abagatnan in proceeding to the poultry farm. Upon arriving therein, Abagatnan searched for Yao San, but the
latter could not be found. Appellants Reyes and Arnaldo told Abagatnan to remind Yao San about the ransom
demanded. Thereafter, appellants Reyes and Arnaldo and their male companion left Abagatnan in the poultry
farm and went back to the safe-house.11

In the safe-house, appellants told Robert that they would release him so he could help Abagatnan in locating
Yao San. Robert and appellants left the safe-house, and after 30 minutes of trekking, appellants abandoned
Robert. Robert then ran towards the poultry farm. Upon arriving at the poultry farm, Robert found Yao San and
informed him about the ransom demanded by the appellants. Robert also told Yao San that Chua Ong Ping
Sim and Raymond were still held by appellants and their cohorts.12

On 18 July 1999, appellants called Yao San through a cellular phone and demanded the ransom of P5 million
for Chua Ong Ping Sim and Raymond. Yao San acceded to appellants’ demand. Appellants allowed Yao San
to talk with Chua Ong Ping Sim.13

On the morning of 19 July 1999, appellants again called Yao San via a cellular phone and threatened to kill
Chua Ong Ping Sim and Raymond because of newspaper and radio reports regarding the incident. Yao San
clarified to appellants that he did not report the incident to the police and also pleaded with them to spare the
life of Chua Ong Ping Sim and Raymond. Appellants then instructed Yao San to appear and bring with him the
ransom of P5 million at 3:00 p.m. in the Usan dumpsite, Litex Road, Fairview, Quezon City. Yao San arrived at
the designated place of the pay-off at 4:00 p.m., but none of the appellants or their cohorts showed up. Yao
San waited for appellant’s call, but none came. Thus, Yao San left.14

On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond were found at the La Mesa Dam,
Novaliches, Quezon City.15 Both died of asphyxia by strangulation.16
On 26 July 1999, appellant Arnaldo surrendered to the Presidential Anti-Organized Crime Task Force
(PAOCTF) at Camp Crame, Quezon City. Thereupon, appellant Arnaldo, with the assistance of Atty. Uminga,
executed a written extra-judicial confession narrating his participation in the incident. Appellant Arnaldo
identified appellants Reyes and Flores, Pataray and a certain Tata and Akey as his co-participants in the
incident. Appellant Arnaldo also described the physical features of his cohorts and revealed their
whereabouts.17

Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose del Monte, Bulacan. Thereafter,
appellants Arnaldo and Reyes were identified in a police line-up by Yao San, Robert and Abagatnan as their
kidnappers.18

On 10 August 1999, agents of the PAOCTF arrested appellant Flores in Balayan, Batangas. Afterwards,
appellant Flores, with the assistance of Atty. Rous, executed a written extra-judicial confession detailing his
participation in the incident. Appellant Flores identified appellants Reyes and Arnaldo, Pataray and a certain
Tata and Akey as his co-participants in the incident. Appellant Flores was subsequently identified in a police
line-up by Yao San, Robert and Abagatnan as one of their kidnappers.19

The prosecution adduced documentary evidence to bolster the aforesaid allegations, to wit: (1) Sinumpaang
Salaysay of Abagatnan (Exhibit A);20 (2) Karagdagang Sinumpaang Salaysay of Abagatnan, Robert and Yao
San (Exhibit B);21 (3) sketch made by Abagatnan (Exhibit C);22 (4) death certificates of Chua Ong Ping Sim and
Raymond (Exhibits D & E);23 (5) Sinumpaang Salaysay of Robert (Exhibit F);24 (6) Sinumpaang Salaysay of
Yao San (Exhibit H);25 (7) joint affidavit of Police Senior Inspector Loreto P. Delelis and PO3 Roberto Jabien
(Exhibit I);26 (8) joint affidavit of PO3 Alex Alberto and PO3 Leonito Fermin (Exhibit J);27 (9) written extra-
judicial confession of appellant Flores (Exhibit K);28 (10) written extra-judicial confession of appellant Arnaldo
(Exhibit L);29 and (11) sketch made by appellant Arnaldo (Exhibit M).30

For its part, the defense presented the testimonies of appellants, Marina Reyes, Irene Flores Celestino,
Wilfredo Celestino, Jr., Rachel C. Ramos, and Isidro Arnaldo. Appellants denied any liability and interposed
alibis and the defense of frame-up. Their testimonies, as corroborated by their witnesses, are as follows:

Appellant Arnaldo testified that he was an "asset" of the PAOCTF. He narrated that on 25 July 1999, while he
was at the tricycle terminal of Brgy. Sto. Cristo, San Jose del Monte, Bulacan, a police officer named Liwanag
of the PAOCTF approached and invited him to go to Camp Crame to shed light on a kidnapping case allegedly
committed by a certain Brgy. Captain Ramos and by members of the Aguirre and Bautista families. He
accepted the invitation. Subsequently, he proceeded to Camp Crame and met therein Colonel Cesar Mancao
III (Colonel Mancao) of the PAOCTF. Colonel Mancao told him that the PAOCTF would arrest Brgy. Capt.
Ramos and certain persons named Gerry Bautista and Dadie Bautista. Colonel Mancao instructed him to
identify said persons as responsible for the kidnapping of the Yao family. He refused to do so because he
feared Brgy. Capt. Ramos. The day after, Colonel Mancao called appellant Arnaldo to his office. Upon arriving
thereat, the latter saw Yao San. Yao San promised him that if their kidnappers would be apprehended through
his cooperation, he would give himP500,000.00. He accepted Yao San’s offer under the condition that he
would identify a different set of suspects. Later, Colonel Mancao gave him P30,000.00.31

Subsequently, he pointed to appellants Reyes and Flores as his cohorts in kidnapping the Yao family. He
implicated appellants Reyes and Flores to get even with them, since the two had previously mauled him after
he sold their fighting cocks and failed to give them the proceeds of the sale.32

He denied having met with Atty. Uminga. He was not assisted by the latter when he was forced by the
PAOCTF to make a written extra-judicial confession on the kidnapping of the Yao family. Further, he claimed
that while he was under the custody of PAOCTF, a certain Major Paulino utilized him as a drug pusher. Upon
failing to remit the proceeds of the drug sale, he was beaten up by PAOCTF agents and thereafter included as
accused with appellants Reyes and Flores for the kidnapping of the Yao family.33

On the other hand, appellant Reyes testified that he slept in his house with his family from 6:00 p.m. of 16 July
1999 until the morning of the next day; that on the early morning of 26 July 1999, five policemen barged into
his house and arrested him; that the policemen told him that he was a suspect in the kidnapping of the Yao
family; that he was mauled by the policemen outside his house; that the policemen forcibly brought him to
Camp Crame, where he was subsequently tortured; that he knew the Yao family because he worked as a
carpenter in the family’s poultry farm at Brgy. Sto. Cristo, San Jose del Monte, Bulacan; that he had no
involvement in the kidnapping of the family; and that appellant Arnaldo implicated him in the kidnapping of the
family because appellant Arnaldo held a grudge against him.34

For his part, appellant Flores testified that he stayed in his sister’s house at Antipolo City from 12 July 1999 up
to 30 July 1999; that he went to her house on 12 July 1999 because it was the birthday of her child; that he
worked as a construction worker during his stay in his sister’s house; that he was arrested in Batangas and
thereafter brought to Camp Crame, where he was beaten up by policemen for refusing to admit involvement in
the kidnapping of the Yao family; that after three days of beating, he was forced to sign a document which he
later found out to be a written extra-judicial confession; that he never met nor did he know Atty. Rous; that he
knew the Yao family because he lived near the family’s poultry farm, and he used to work therein as a welder;
that he had no participation in the kidnapping of the family; and that appellant Arnaldo implicated him in the
kidnapping of the family because he and appellant Reyes had mauled appellant Arnaldo several years ago.35

The defense proffered documentary and object evidence to buttress their foregoing claims, to wit: (1) prayer
booklet of appellant Arnaldo (Exhibit 1 for appellant Arnaldo);36 (2) calling card of Colonel Mancao (Exhibit 2 for
appellant Arnaldo);37 and (3) pictures allegedly showing appellant Flores working as a carpenter in Antipolo
City (Exhibits 1 & 2 for appellant Flores).38

After trial, the RTC rendered a Decision dated 26 February 2002 convicting appellants of the special complex
crime of kidnapping for ransom with homicide and sentencing each of them to suffer the supreme penalty of
death. Appellants were also ordered to pay jointly and severally the Yao family P150,000.00 as civil
indemnity,P500,000.00 as moral damages and the costs of the proceedings. The dispositive portion of the
RTC Decision reads:

WHEREFORE, finding herein three (3) accused DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA, and
JOSELITO FLORES y VICTORIO guilty as principals beyond reasonable doubt of the crime of KIDNAPPING
FOR RANSOM WITH (DOUBLE) HOMICIDE as charged, they are hereby sentenced each to suffer the
supreme penalty of DEATH as mandated by law, to jointly and severally indemnify the heirs of deceased Chua
Ong Ping Sim and Raymond Yao in the amount of One Hundred Fifty Thousand Pesos (P150,000.00), and all
the private offended parties or victims, including the heirs of the deceased, in the amount of Five Hundred
Thousand Pesos (P500,000.00) as moral damages, subject to the corresponding filing fee as a first lien, and to
pay the costs of the proceedings.39

By reason of the death penalty imposed on each of the appellants, the instant case was elevated to us for
automatic review. However, pursuant to our ruling in People v. Mateo,40 we remanded the instant case to the
Court of Appeals for proper disposition.

On 14 August 2006, the Court of Appeals promulgated its Decision affirming with modifications the RTC
Decision. The appellate court reduced the penalty imposed by the RTC on each of the appellants from death
penalty to reclusion perpetua without the possibility of parole. It also decreased the amount of civil indemnity
fromP150,000.00 to P100,000.00. Further, it directed appellants to pay jointly and severally the Yao
familyP100,000.00 as exemplary damages. The fallo of the Court of Appeals’ decision states:

WHEREFORE, premises considered, the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 12,
dated February 26, 2002, in Criminal Case No. 1611-M-99 convicting accused-appellants of the crime of
Kidnapping For Ransom with (Double) Homicide, is hereby AFFIRMED with MODIFICATIONS in that:

1) accused-appellants are instead sentenced to suffer the penalty of reclusion perpetua;

2) the award of civil indemnity ex delicto is hereby reduced to P100,000; and

 3) accused-appellants are further ordered to pay private complainants the amount of P100,000.00 as
exemplary damages.41

Appellants filed a motion for reconsideration of the Court of Appeals’ Decision but this was denied. Hence,
appellants filed their Notice of Appeal on 25 August 2006.

In their separate briefs,42 appellants assigned the following errors:

I.

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESSES;

II.

THE TRIAL COURT ERRED IN FINDING A CONSPIRACY BETWEEN APPELLANTS;

III.

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE EXTRA-JUDICIAL
CONFESSIONS OF APPELLANT ARNALDO AND APPELLANT FLORES;

IV.

THE TRIAL COURT ERRED IN TOTALLY IGNORING THE CORROBORATED EVIDENCE OF THE
DEFENSE;

V.

THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAD PROVEN APPELLANTS’ GUILT
BEYOND REASONABLE DOUBT.43

Anent the first assigned error, appellants assail the credibility of prosecution witnesses Abagatnan, Robert and
Yao San.

In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following well-
settled principles: (1) the reviewing court will not disturb the findings of the lower court, unless there is a
showing that the latter overlooked, misunderstood or misapplied some fact or circumstance of weight and
substance that may affect the result of the case; (2) the findings of the trial court on the credibility of witnesses
are entitled to great respect and even finality, as it had the opportunity to examine their demeanor when they
testified on the witness stand; and (3) a witness who testifies in a clear, positive and convincing manner is a
credible witness.44

After carefully reviewing the evidence on record and applying the foregoing guidelines to this case, we found
no cogent reason to overturn the RTC’s ruling finding the testimonies of the prosecution witnesses credible.
Prosecution witnesses Abagatnan, Robert, and Yao San positively identified appellants and their cohorts as
their kidnappers during a police line-up and also during trial. Abagatnan specifically testified during the trial that
after appellants and their cohorts forcibly entered the van where she and the Yao family were, appellant Flores
drove the van away from the poultry farm; that appellants Reyes and Arnaldo were among the kidnappers who
guarded her, Robert, Chua Ong Ping Sim and Raymond in the safe-house; and that appellants Reyes and
Arnaldo accompanied her in going to the poultry farm to search for Yao San and remind him about the ransom
demanded.45 Robert confirmed that appellants and their cohorts blindfolded them inside the van during the
incident. He also recounted that appellants and their cohorts detained him and Chua Ong Ping Sim, Raymond
and Abagatnan in a safe-house. He was later instructed by appellants to find Yao San and remind him about
the ransom.46 Yao San declared that during the incident, appellant Reyes and Pataray approached him, poked
their guns at him, and dragged him into the van. Appellant Flores took the driver’s seat and drove the van.
Appellant Flores and his male companion told him to produce P5 million as ransom money in exchange for the
release of Chua Ong Ping Sim, Robert, Raymond and Abagatnan.47

Abagatnan, Robert and Yao San testified in a clear and candid manner during the trial. Their respective
testimonies were consistent with one another. They were steadfast in recounting their ordeal despite the
grueling cross examination of the defense. Moreover, their testimonies were in harmony with the documentary
evidence adduced by the prosecution. The RTC and the Court of Appeals found their testimonies credible and
trustworthy. Both courts also found no ill motive for Abagatnan, Robert and Yao San to testify against
appellants.

Appellants, nonetheless, maintain that Abagatnan, Robert and Yao San could not have identified their
kidnappers, because (1) the incident occurred in the darkness of the night; (2) they were blindfolded then; and
(3) the heads of the kidnappers were covered by T-shirts.

It appears that the crime scene was well-lighted during the incident. At that time, there was a light from a
fluorescent bulb hanging above the gate of the poultry farm wherein Yao San was held at gunpoint by
appellant Reyes and Pataray.48 The headlights of the van were also turned on, making it possible for
Abagatnan and Robert to see the faces of appellant Reyes and Pataray as the two approached and poked
their guns at Yao San.49 Further, there was a bulb inside the van, which turned on when the door’s van was
opened. This bulb lighted up when appellants and their cohorts forcibly boarded the van, thus, allowing
Abagatnan, Robert and Yao San to glance at the faces of appellants and their cohorts.50

Although the Yao family was blindfolded during the incident, it was, nevertheless, shown that it took appellants
and their cohorts about 10 minutes before all members of the Yao family were blindfolded.51 During this
considerable length of time, Abagatnan, Robert and Yao San were able to take a good look at the faces of
appellants and their cohorts. In addition, Abagatnan and Robert narrated that their respective blindfolds
loosened several times, giving them the opportunity to have a glimpse at the faces of appellants and their
cohorts.52

Abagatnan, Robert and Yao San testified that even though the heads of appellants and their cohorts were
covered by T-shirts, their faces were, nonetheless, exposed and uncovered, allowing them to see their
faces.53Robert and Yao San also declared that they recognized the faces of appellants during the incident
because the latter resided near the poultry farm of the Yao family, which used to hire them several times in the
farm as carpenters/welders.54

Appellants, however, insist that the testimonies of Abagatnan, Robert and Yao San that they were able to
recognize the kidnappers -- because although the kidnappers’ heads were covered with T-shirts, their faces
were nevertheless exposed or uncovered -- are incredible. Appellants argue that it is against human nature
and experience that kidnappers would cover only their heads and not their faces in concealing their identities.

It is not illogical or against human nature for appellants and their cohorts to cover their heads with T-shirts,
while leaving their faces exposed and uncovered when they kidnapped the Yao family. Perhaps, appellants
and their cohorts thought that putting T-shirts on their heads without covering their faces was sufficient to
conceal their identities. Regardless of their reason, the fact remains that Abagatnan, Robert and Yao San
positively identified appellants as their kidnappers, and their said identification and testimonies were found by
the RTC, the Court of Appeals and by this Court to be credible. In People v. Barredo,55 the victim testified that
he was able to identify the accused as his assailants because the latter took off their masks during the assault.
The accused argued that the victim’s testimony was incredible because persons who wore masks would not
take them off so casually in the presence of their victims, as doing so would reveal their identities. The trial
court, nonetheless, ruled that the victim’s testimony was credible and truthful. We sustained such ruling of the
trial court and ratiocinated:

Appellants dispute the plausibility of Enrico Cebuhano’s claim that he was able to identify the assailants
because they took off their masks. Persons who wear masks would not take them off so casually in the
presence of their victims, as doing so would thereby reveal their identities. x x x.
The above arguments are untenable. In his testimony, Enrico Cebuhano clearly stated that the men who
entered his home removed their masks when he was brought downstairs. Why they did so was known only to
them. It is possible that they thought that there was no one in the vicinity who could identify them, or that they
wanted Enrico to see who they were so as to intimidate him. It is also possible that they felt secure because
there were 14 of them who were all armed. In any event, what is important is that the trial court found Enrico
Cebuhano’s testimony to be both credible and believable, and that he was able to positively identify appellants
herein, because the men who entered his home removed their masks, x x x.

It is significant to note that Chua Ong Ping Sim and Raymond were brutally killed as a result of the kidnapping.
It is difficult to believe that Robert and Yao San would point to appellants and their cohorts as their kidnappers
if such were not true. A witness’ relationship to the victim of a crime makes his testimony more credible as it
would be unnatural for a relative interested in vindicating a crime done to their family to accuse somebody
other than the real culprit.56 Relationship with a victim of a crime would deter a witness from indiscriminately
implicating anybody in the crime. His natural and usual interest would be to identify the real malefactor and
secure his conviction to obtain true justice for the death of a relative.57

Appellants put in issue the failure of Robert and Yao San to immediately report the incident and identify
appellants to authorities despite their common claim that they recognized appellants, as the latter used to work
in the poultry farm.

Robert and Yao San cannot be blamed for not immediately reporting the incident to the authorities. Chua Ong
Ping Sim and Raymond were still held by appellants and their cohorts when the ransom was demanded for
their release. Appellants and their cohorts were armed and dangerous. Appellants and their cohorts also
threatened to kill Chua Ong Ping Sim and Raymond if Yao San and Robert would report the incident to the
authorities.58Understandably, Yao San and Robert were extremely fearful for the safety of their loved ones, and
this caused them to refrain from reporting the incident. Robert and Yao San cannot also be blamed for not
reporting the incident to the police even after the corpses of Chua Ong Ping Sim and Raymond had already
been found, and appellants and their cohorts had cut their communication with them. Certainly, the killings of
Chua Ong Ping Sim and Raymond had a chilling/paralyzing effect on Robert and Yao San. Also, appellants
and their cohorts were still at large then, and the possibility that they would harm the remaining members of the
Yao family was not remote, considering that appellants and their cohorts were familiar with the whereabouts of
the Yao family. At any rate, we have held that failure to immediately report the kidnapping incident does not
diminish the credibility of the witnesses.59 The lapse of a considerable length of time before a witness comes
forward to reveal the identities of the perpetrators of the crime does not taint the credibility of the witness and
his testimony where such delay is satisfactorily explained.60

Apropos the second assigned error, appellants contend that the prosecution failed to prove that they conspired
in kidnapping the Yao family.

Under Article 8 of the Revised Penal Code, there is conspiracy when two or more persons agree to commit a
felony and decide to commit it. Conspiracy presupposes unity of purpose and unity in the execution of the
unlawful objective among the accused.61 When the accused by their acts aimed at the same object, one
performing one part and the other performing another part as to complete the crime, with a view to the
attainment of the same object, conspiracy exists.62

As can be gleaned from the credible testimonies and sworn statements of Abagatnan, Robert and Yao,
appellant Reyes and Pataray63 approached and poked their guns at Yao San, and thereafter dragged the latter
into the van. Appellant Flores then took the driver’s seat and drove the van, while each member of the Yao
family was blindfolded by appellants Reyes and Arnaldo and their cohorts inside the van. Thereafter, appellant
Flores instructed Yao San to produce the amount of P5 million as ransom money in exchange for the release
of Chua Ong Ping Sim, Robert, Raymond and Abagatnan. Appellant Reyes and appellant Arnaldo were among
the kidnappers who guarded Abagatnan, Robert, Chua Ong Ping Sim and Raymond in the safe-house. They
also accompanied Abagatnan and Robert in going to the poultry farm to search for and remind Yao San about
the ransom demanded. Further, appellants Arnaldo and Flores narrated in their respective extra-judicial
confessions64 how they planned and executed the kidnapping of the Yao family. Their extra-judicial
confessions also detailed the particular role/participation played by each of appellants and their cohorts in the
kidnapping of the family. Clearly, the foregoing individual acts of appellants and their cohorts demonstrated
their unity of purpose and design in kidnapping the Yao family for the purpose of extorting ransom.

Appellants, however, challenge the legality and admissibility of the written extra-judicial confessions.

Appellant Reyes claims that his alleged participation in the kidnapping of the Yao family was based solely on
the written extra-judicial confessions of appellants Arnaldo and Flores. He maintains, however, that said extra-
judicial confessions are inadmissible in evidence, because they were obtained in violation of his co-appellants’
constitutional right to have an independent counsel of their own choice during custodial investigation. Appellant
Reyes alleges that the agents of the PAOCTF did not ask his co-appellants during the custodial investigation
whether they had a lawyer of their own choice, and whether they could afford to hire a lawyer; that the agents
of the PAOCTF suggested the availability of Atty. Uminga and Atty. Rous to his co-appellants; and that Atty.
Uminga and Atty. Rous were associates of the PAOCTF. Appellant Reyes also asseverates that the extra-
judicial confessions of appellants Arnaldo and Flores cannot be utilized against him.

Appellant Flores argues that his written extra-judicial confession is inadmissible in evidence, because it was
obtained in violation of his constitutional right to have an independent counsel of his own choice during
custodial investigation. He insists that his written extra-judicial confession was elicited through force, torture
and without the assistance of a lawyer. He avers that he was not assisted by any lawyer from the time he was
arrested until he was coerced to sign the purported confession; that he was forced to sign it because he could
not anymore endure the beatings he suffered at the hands of the PAOCTF agents; and that he never met or
knew Atty. Rous who, according to the PAOCTF, had assisted him during the custodial investigation.

Appellant Arnaldo contends that his written extra-judicial confession should be excluded as evidence, as it was
procured in violation of his constitutional right to have an independent counsel of his own choice during
custodial investigation. He claims that he was not given freedom to choose his counsel; that the agents of the
PAOCTF did not ask him during the custodial investigation whether he had a lawyer of his own choice, and
whether he could afford to hire a lawyer; and that the agents of the PAOCTF suggested the availability of Atty.
Uminga to him.

An extra-judicial confession is a declaration made voluntarily and without compulsion or inducement by a

person under custodial investigation, stating or acknowledging that he had committed or participated in the
commission of a crime.65 In order that an extra-judicial confession may be admitted in evidence, Article III,
Section 12 of the 1987 Constitution mandates that the following safeguards be observed66:

Section 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.1awphi.zw+

(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 forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence
against him.

Thus, we have held that an extra-judicial confession is admissible in evidence if the following requisites have
been satisfied: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent
counsel; (3) it must be express; and (4) it must be in writing.67

The mantle of protection afforded by the above-quoted constitutional provision covers the period from the time
a person is taken into custody for the investigation of his possible participation in the commission of a crime or
from the time he is singled out as a suspect in the commission of the offense although not yet in custody.68
The right of an accused to be informed of the right to remain silent and to counsel contemplates the
transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract
constitutional principle.69 Such right contemplates effective communication which results in the subject
understanding what is conveyed.70

The right to counsel is a fundamental right and is intended to preclude the slightest coercion as would lead the
accused to admit something false.71 The right to counsel attaches upon the start of the investigation, i.e., when
the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the
accused.72 The lawyer called to be present during such investigation should be, as far as reasonably possible,
the choice of the accused. If the lawyer is one furnished in behalf of accused, he should be competent and
independent; that is, he must be willing to fully safeguard the constitutional rights of the accused.73 A
competent and independent counsel is logically required to be present and able to advice and assist his client
from the time the latter answers the first question asked by the investigator until the signing of the confession.
Moreover, the lawyer should ascertain that the confession was made voluntarily, and that the person under
investigation fully understood the nature and the consequence of his extra-judicial confession vis-a-vis his
constitutional rights. 74

However, the foregoing rule is not intended to deter to the accused from confessing guilt if he voluntarily and
intelligently so desires, but to protect him from admitting what he is being coerced to admit although untrue. To
be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The
presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him; but,
rather, it was adopted in our Constitution to preclude the slightest coercion on the accused to admit something
false. The counsel should never prevent an accused from freely and voluntarily telling the truth.75

We have gone over the records and found that the PAOCTF investigators have duly apprised appellants
Arnaldo and Flores of their constitutional rights to remain silent and to have competent and independent
counsel of their own choice during their respective custodial investigations.

The Pasubali76 of appellants Arnaldo and Flores’s written extra-judicial confessions clearly shows that before
they made their respective confessions, the PAOCTF investigators had informed them that the interrogation
about to be conducted on them referred to the kidnapping of the Yao family. Thereafter, the PAOCTF agents
explained to them that they had a constitutional right to remain silent, and that anything they would say may be
used against them in a court of law. They were also told that they were entitled to a counsel of their own choice,
and that they would be provided with one if they had none. When asked if they had a lawyer of their own,
appellant Arnaldo replied that he would be assisted by Atty. Uminga, while appellant Flores agreed to be
represented by Atty. Rous. Thereafter, when asked if they understood their said rights, they replied in the
affirmative. The appraisal of their constitutional rights was done in the presence of their respective lawyers and
in the Tagalog dialect, the language spoken and understood by them. Appellants Arnaldo and Flores and their
respective counsels, Atty. Uminga and Atty. Rous, also signed and thumbmarked the extra-judicial confessions.
Atty. Uminga and Atty. Rous attested to the veracity of the afore-cited facts in their respective court
testimonies.77 Indeed, the appraisal of appellants’ constitutional rights was not merely perfunctory, because it
appeared certain that appellants had understood and, in fact, exercised their fundamental rights after being
informed thereof.

Records reflect that appellants Arnaldo and Reyes were likewise accorded their right to competent and
independent counsel during their respective custodial investigations.

As regards appellant Arnaldo, Atty. Uminga testified that prior to the questioning of appellant Arnaldo about the
incident, Atty. Uminga told the PAOCTF investigators and agents to give him and appellant Arnaldo space and
privacy, so that they could freely converse. After the PAOCTF investigators and agents left them, he and
appellant Arnaldo went to a cubicle where only the two of them were present. He interviewed appellant Arnaldo
in the Tagalog language regarding the latter’s personal circumstances and asked him why he was in the
PAOCTF office and why he wanted a lawyer. Appellant Arnaldo replied that he wanted to make a confession
about his participation in the kidnapping of the Yao family. Thereupon, he asked appellant Arnaldo if the latter
would accept his assistance as his lawyer for purposes of his confession. Appellant Arnaldo agreed. He
warned appellant Arnaldo that he might be sentenced to death if he confessed involvement in the incident.
Appellant Arnaldo answered that he would face the consequences because he was bothered by his
conscience. He inquired from appellant Arnaldo if he was harmed or intimidated into giving self-incriminating
statements to the PAOCTF investigators. Appellant Arnaldo answered in the negative. He requested appellant
Arnaldo to remove his shirt for him to check if there were torture marks on his body, but he found none. He
also observed that appellant Arnaldo’s appearance and movements were normal. His conference with
appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed the PAOCTF investigators to question
appellant Arnaldo.78

Further, Atty. Uminga sat beside appellant Arnaldo during the inquiry and listened to the latter’s entire
confession. After the taking of appellant Arnaldo’s confession, Atty. Uminga requested the PAOCTF
investigators to give him a copy of appellant Arnaldo’s confession. Upon obtaining such copy, he read it
entirely and thereafter gave it to appellant Arnaldo. He instructed appellant Arnaldo to read and comprehend
the same carefully. He told appellant Arnaldo to ask him for clarification and comment if he did not agree or
understand any part of his written confession. Appellant Arnaldo read his entire written confession and handed
it to him. Atty. Uminga asked him if he had objections to it. Appellant Arnaldo replied in the negative. He then
reminded appellant Arnaldo that the latter could still change his mind, and that he was not being forced to sign.
Appellant Arnaldo manifested that he would sign his written confession. Later, he and appellant Arnaldo affixed
their signatures to the written confession.79

With respect to appellant Flores, Atty. Rous declared that before the PAOCTF investigators began questioning
appellant, Atty. Rous interviewed him in Tagalog inside a room, where only the two of them were present. He
asked appellant Flores about his personal circumstances. Appellant Flores replied that he was a suspect in the
kidnapping of the Yao family, and he wanted to give a confession regarding his involvement in the said incident.
He asked appellant Flores whether he would accept his assistance as his lawyer. Appellant Flores affirmed
that he would. He asked appellant Flores why he wanted to give such confession. Appellant Flores answered
that he was bothered by his conscience. Atty. Rous warned appellant Flores that his confession would be used
against him in a court of law, and that the death penalty might be imposed on him. Appellant Flores told him
that he wanted to tell the truth and unload the burden on his mind. He requested appellant Flores to lift his shirt
for the former to verify if there were torture marks or bruises on his body, but found none. Again, he cautioned
appellant Flores about the serious consequences of his confession, but the latter maintained that he wanted to
tell the truth. Thereafter, he permitted the PAOCTF investigators to question appellant Flores.80

Additionally, Atty. Rous stayed with appellant Flores while the latter was giving statements to the PAOCTF
investigators. After the taking of appellant Flores’ statements, he instructed appellant Flores to read and check
his written confession. Appellant Flores read the same and made some minor corrections. He also read
appellant Flores’ written confession. Afterwards, he and appellant Flores signed the latter’s written
confession.81

It is true that it was the PAOCTF which contacted and suggested the availability of Atty. Uminga and Atty.
Rous to appellants Arnaldo and Flores, respectively. Nonetheless, this does not automatically imply that their
right to counsel was violated. What the Constitution requires is the presence of competent and independent
counsel, one who will effectively undertake his client’s defense without any intervening conflict of
interest.82 There was no conflict of interest with regard to the legal assistance rendered by Atty. Uminga and
Atty. Rous. Both counsels had no interest adverse to appellants Arnaldo and Flores. Although Atty. Uminga
testified that he was a former National Bureau of Investigation (NBI) agent, he, nevertheless, clarified that he
had been separated therefrom since 199483 when he went into private practice. Atty. Uminga declared under
oath that he was a private practitioner when he assisted appellant Arnaldo during the custodial
investigation.84 It appears that Atty. Uminga was called by the PAOCTF to assist appellant Arnaldo, because
Atty. Uminga’s telephone number was listed on the directory of his former NBI officemates detailed at the
PAOCTF. Atty. Rous, on the other hand, was a member of the Free Legal Aid Committee of the Integrated Bar
of the Philippines, Quezon City at the time he rendered legal assistance to appellant Flores.85 Part of Atty.
Rous’ duty as member of the said group was to render legal assistance to the indigents including suspects
under custodial investigation. There was no evidence showing that Atty. Rous had organizational or personal
links to the PAOCTF. In fact, he proceeded to the PAOCTF office to assist appellant Flores, because he
happened to be the lawyer manning the office when the PAOCTF called.86 In People v. Fabro,87 we stated:
The Constitution further requires that the counsel be independent; thus, he cannot be a special counsel, public
or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that
of the accused. Atty. Jungco does not fall under any of said enumeration. Nor is there any evidence that he
had any interest adverse to that of the accused. The indelible fact is that he was president of the Zambales
Chapter of the Integrated Bar of the Philippines, and not a lackey of the lawmen.

Further, as earlier stated, under Section 12(1), Article III of the 1987 Constitution, an accused is entitled to
have competent and independent counsel preferably of his own choice. The phrase "preferably of his own
choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive
as to preclude other equally competent and independent attorneys from handling the defense. Otherwise, the
tempo of custodial investigation would be solely in the hands of the accused who can impede, nay, obstruct,
the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to
protect his interest.88While the choice of a lawyer in cases where the person under custodial interrogation
cannot afford the services of counsel – or where the preferred lawyer is not available – is naturally lodged in
the police investigators, the suspect has the final choice, as he may reject the counsel chosen for him and ask
for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not
raise any objection to the counsel’s appointment during the course of the investigation, and the accused
thereafter subscribes to the veracity of the statement before the swearing officer.89 Appellants Arnaldo and
Flores did not object to the appointment of Atty. Uminga and Atty. Rous as their lawyers, respectively, during
their custodial investigation. Prior to their questioning, appellants Arnaldo and Flores conferred with Atty.
Uminga and Atty. Rous. Appellant Arnaldo manifested that he would be assisted by Atty. Uminga, while
appellant Flores agreed to be counseled by Atty. Rous. Atty. Uminga and Atty. Rous countersigned the written
extra-judicial confessions of appellants Arnaldo and Flores, respectively. Hence, appellants Arnaldo and Flores
are deemed to have engaged the services of Atty. Uminga and Atty. Rous, respectively.

Since the prosecution has sufficiently established that the respective extra-judicial confessions of appellant
Arnaldo and appellant Flores were obtained in accordance with the constitutional guarantees, these
confessions are admissible. They are evidence of a high order because of the strong presumption that no
person of normal mind would deliberately and knowingly confess to a crime, unless prompted by truth and
conscience.90Consequently, the burden of proving that undue pressure or duress was used to procure the
confessions rests on appellants Arnaldo and Flores.91

In the case at bar, appellants Arnaldo and Flores failed to discharge their burden of proving that they were
forced or coerced to make their respective confessions. Other than their self-serving statements that they were
maltreated by the PAOCTF officers/agents, they did not present any plausible proof to substantiate their
claims.lawphil.netThey did not submit any medical report showing that their bodies were subjected to violence
or torture. Neither did they file complaints against the persons who had allegedly beaten or forced them to
execute their respective confessions despite several opportunities to do so. Appellants Arnaldo and Flores
averred that they informed their family members/relatives of the alleged maltreatment, but the latter did not
report such allegations to proper authorities. On the contrary, appellants Arnaldo and Flores declared in their
respective confessions that they were not forced or harmed in giving their sworn statements, and that they
were not promised or given any award in consideration of the same. Records also bear out that they were
physically examined by doctors before they made their confessions.92 Their physical examination reports
certify that no external signs of physical injury or any form of trauma were noted during their examination.93 In
People v. Pia,94 we held that the following factors indicate voluntariness of an extra-judicial confession: (1)
where the accused failed to present credible evidence of compulsion or duress or violence on their persons; (2)
where they failed to complain to the officers who administered the oaths; (3) where they did not institute any
criminal or administrative action against their alleged intimidators for maltreatment; (4) where there appeared
to be no marks of violence on their bodies; and (5) where they did not have themselves examined by a
reputable physician to buttress their claim.

It should also be noted that the extra-judicial confessions of appellants Arnaldo and Flores are replete with
details on the manner in which the kidnapping was committed, thereby ruling out the possibility that these were
involuntarily made. Their extra-judicial confessions clearly state how appellants and their cohorts planned the
kidnapping as well as the sequence of events before, during and after its occurrence. The voluntariness of a
confession may be inferred from its language if, upon its face, the confession exhibits no suspicious
circumstances tending to cast doubt upon its integrity, it being replete with details which could only be supplied
by the accused.95

With respect to appellant Reyes’s claim that the extra-judicial confessions of appellants Arnaldo and Flores
cannot be used in evidence against him, we have ruled that although an extra-judicial confession is admissible
only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that
tend to establish the guilt of his co-accused.96 In People v. Alvarez,97 we ruled that where the confession is
used as circumstantial evidence to show the probability of participation by the co-conspirator, that confession is
receivable as evidence against a co-accused. In People v. Encipido98 we elucidated as follows:

It is also to be noted that APPELLANTS’ extrajudicial confessions were independently made without collusion,
are identical with each other in their material respects and confirmatory of the other. They are, therefore, also
admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the
latter’s actual participation in the commission of the crime. They are also admissible as corroborative evidence
against the others, it being clear from other facts and circumstances presented that persons other than the
declarants themselves participated in the commission of the crime charged and proved. They are what is
commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial
confessions/admissions are admissible in evidence only against the declarants thereof.

Appellants Arnaldo and Flores stated in their respective confessions that appellant Reyes participated in their
kidnapping of the Yao family. These statements are, therefore, admissible as corroborative and circumstantial
evidence to prove appellant Reyes’ guilt.

Nevertheless, even without the extra-judicial confessions of appellants Arnaldo and Flores, evidence on record
is sufficient to sustain a finding of culpability of appellant Reyes. As earlier found, Abagatnan, Robert and Yao
positively identified appellant Reyes as one of their kidnappers. They specifically testified that during the
incident, appellant Reyes (1) approached and pointed a gun at Yao San and dragged the latter inside the van;
and (2) accompanied Abagatnan and Robert in going to the poultry farm to search for and remind Yao San
about the ransom demanded. The RTC, Court of Appeals and this Court found such testimonies credible.

Appellants argue that their alibis cast reasonable doubt on their alleged guilt. Appellant Reyes avers that he
could not have been one of those who kidnapped the Yao family on the night of 16 July 1999 at around 11:00
p.m., because he was sleeping with his family in their residence during such time and date. Likewise, appellant
Flores asseverates that he could not have been present at the crime scene on such date and time, as he was
already sleeping in his sister’s house at Antipolo City. For his part, appellant Arnaldo asserts that he is a victim
of a police frame-up. He alleges that he was an asset of the PAOCTF, but was later utilized as a drug pusher
by the said agency. Upon failing to remit the proceeds of a shabu sale to the PAOCTF officers, he was beaten
up and included as accused in the kidnapping of the Yao family.

Alibi is the weakest of all defenses, for it is easy to contrive and difficult to prove. Alibi must be proved by the
accused with clear and convincing evidence; otherwise it cannot prevail over the positive testimonies of
credible witnesses who testify on affirmative matters. For alibi to prosper, it is not enough for the accused to
prove that he was somewhere else when the crime was committed. He must likewise prove that it was
physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its
commission.99

The defense of frame-up, like alibi, has been invariably viewed by this Court with disfavor, for it can easily be
concocted but is difficult to prove. In order to prosper, the defense of frame-up must be proved by the accused
with clear and convincing evidence.100

It should be observed that the family residence/house of appellant Reyes where he claimed to have slept when
the incident occurred is located within Brgy. Sto. Cristo, San Jose del Monte, Bulacan.101 This is the same
barangay where the Yao family’s poultry farm is situated. Appellant Reyes, in fact, admitted that the poultry
farm is near his residence.102 There is a huge possibility that appellant Reyes slept for a while, woke up before
11:00 p.m., and thereafter proceeded to the Yao family’s poultry farm to participate in the kidnapping of the
family. The same is true with appellant Flores. Wilfredo, appellant Flores’ nephew, testified that he and
appellant went to bed and slept together in the house of appellant’s sister in Antipolo City at about 8:00 p.m. of
16 July 1999.103 It is greatly possible that Wifredo did not notice when appellant Flores woke up later at 9:00
p.m. and immediately proceeded to the Yao family’s poultry farm to participate in the kidnapping of the family,
arriving therein at about 11:00 p.m. It is a fact that a person coming from Antipolo City may reach San Jose del
Monte, Bulacan in two hours via a motor vehicle, considering that there was no more heavy traffic at that late
evening. Obviously, appellants Reyes and Flores failed to prove convincingly that it was physically impossible
for them to be at the crime scene during the incident.

Appellant Flores submitted two pictures which, according to him, show that he worked as a construction worker
from 12 July 1999 up to 30 July 1999 while staying in his sister’s house at Antipolo City. These pictures,
however, do not clearly and convincingly support such claim, because (1) the pictures were undated; (2) the
shots were taken from a far distance; and (3) the face of the man in the pictures which appellant Flores claims
as his is blurred, unrecognizable and almost hidden, as such person is wearing a cap and is in a position
where only the right and back portions of his head and body are visible.

Appellant Arnaldo also failed to prove with convincing evidence his defense of frame-up. Aside from his self-
serving testimony that he was a former PAOCTF agent and that he was beaten and included as accused in the
kidnapping of the Yao family by the PAOCTF agents because he failed to remit to the PAOCTF officers the
proceeds of his sale of shabu, he did not present convincing proof to support said allegations. He submitted
the calling card of Colonel Mancao, which appears to have been signed by the latter at the back portion, but
there is nothing on it which indicates or verifies that appellant Arnaldo was indeed a former PAOCTF agent. He
also submitted a prayer book containing his handwritten narration of torture he allegedly experienced at the
hands of the PAOCTF agents, but this does not conclusively show that he was beaten by the PAOCTF agents.
As we earlier found, appellant Arnaldo did not produce any medical records/certificates or file any complaint
against the PAOCTF agents to bolster his claim of maltreatment.

It is true that the alibis of appellants Reyes and Flores and the defense of frame-up of appellant Arnaldo were
corroborated on some points by the testimonies of some of their relatives/friends. We have, however, held that
alibi and the defense of frame-up become less plausible when they are corroborated only by relatives and
friends because of perceived partiality.104

Indeed, the positive and credible testimonies of Abagatnan, Robert and Yao San prevail over the alibis and
defense of frame-up of appellants.105

We shall now determine the propriety of appellants’ conviction for the special complex crime of kidnapping for
ransom with homicide and the corresponding penalties imposed.

Under Article 267 of the Revised Penal Code, the crime of kidnapping is committed with the concurrence of the
following elements: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner
deprives the latter of his liberty; (3) the act of detention or kidnapping is illegal; and (4) in the commission of the
offense, any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three
days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained is a
minor, female, or a public officer.106 All of the foregoing elements were duly establish by the testimonial and
documentary evidences for the prosecution in the case at bar. First, appellants and their cohorts are private
individuals. Second, appellants and their cohorts kidnapped the Yao family by taking control of their van and
detaining them in a secluded place. Third, the Yao family was taken against their will. And fourth, threats to kill
were made and the kidnap victims include females.

Republic Act No. 7659 provides that the death penalty shall be imposed if any of the two qualifying
circumstances is present in the commission of the kidnapping: (1) the motive of the kidnappers is to extort
ransom for the release of the kidnap victims, although none of the circumstances mentioned under paragraph
four of the elements of kidnapping were present. Ransom means money, price or consideration paid or
demanded for the redemption of a captured person that would release him from captivity.107 Whether or not the
ransom is actually paid to or received by the perpetrators is of no moment.108 It is sufficient that the kidnapping
was committed for the purpose of exacting ransom;109 and (2) the kidnap victims were killed or died as a
consequence of the kidnapping or was raped, or subjected to torture or dehumanizing acts. Both of these
qualifying circumstances are alleged in the information and proven during trial.

As testified to by Abagatnan, Robert and Yao San, appellants and their cohorts demanded the amount of P5
million for the release of Chua Ong Pong Sim and Raymond. In fact, Yao San went to the Usan dumpsite, Litex
Road, Fairview, Quezon City, to hand over the ransom money to appellants and their cohorts, but the latter did
not show up. It was also apparent that Chua Ong Ping Sim and Raymond were killed or died during their
captivity. Yao San declared that appellants and their cohorts called up and told him that they would kill Chua
Ong Ping Sim and Raymond who were still under their custody, because they heard the radio report that the
incident was already known to the police. True to their threats, the corpses of Chua Ong Ping Sim and
Raymond were later found dumped in La Mesa Dam. Their respective death certificates show that they died of
asphyxia by strangulation.

Withal, the death penalty cannot be imposed on the appellants in view of the passage of Republic Act No.
9346 on 24 June 2006 prohibiting the imposition of death penalty in the Philippines. In accordance with
Sections 2 and 3 thereof, the penalty that should be meted out to the appellants is reclusion perpetua without
the possibility of parole. The Court of Appeals, therefore, acted accordingly in imposing the penalty of reclusion
perpetua without the possibility of parole on each of the appellants.

The Court of Appeals was also correct in ordering appellants to jointly and severally pay civil indemnity and
exemplary damages to the Yao family. Nonetheless, their corresponding amounts should be modified. In
People v. Quiachon,110 we explained that even if the death penalty was not to be imposed on accused because
of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 was still proper, as the said award
was not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances
warranting the imposition of the death penalty attended the commission of the offense. As earlier stated, both
the qualifying circumstances of demand for ransom and the double killing or death of two of the kidnap victims
were alleged in the information and proven during trial. Thus, for the twin deaths of Chua Ong Ping Sim and
Raymond, their heirs (Yao San, Robert, Lenny, Matthew and Charlene) are entitled to a total amount
of P150,000.00 as civil indemnity. Exemplary damages are imposed by way of example or correction for the
public good.111 In criminal offenses, exemplary damages may be recovered when the crime was committed
with one or more aggravating circumstances, whether ordinary or qualifying.112 Since both the qualifying
circumstances of demand for ransom and the killing or death of two of the kidnap victims (Chua Ong Ping Sim
and Raymond) while in captivity were alleged in the information and proven during trial, and in order to deter
others from committing the same despicable acts, the award of exemplary damages is proper. The total
amount of P100,000.00 as exemplary damages should be modified. In several cases,113 we awarded an
amount of P100,000.00 to each of the kidnap victims. As in this case, the amount of P100,000.00 as
exemplary damages should be awarded each to Yao San, Robert, Lenny, Matthew, Charlene, Abagatnan and
Ortea. This makes the total amount of exemplary damages add up to P700,000.00.

The appellate court aptly held that the award of moral damages is warranted. Under Article 2217 of the New
Civil Code, moral damages include physical suffering, mental anguish, fright, serious anxiety, wounded
feelings, moral shock and similar injury. Article 2219 of the same Code provides that moral damages may be
recovered in cases of illegal detention. There is no doubt that each member of the Yao family suffered physical
and/or psychological trauma because of the ordeal, especially because two of the family members were
ruthlessly killed during their captivity. Pursuant to prevailing jurisprudence,114 Yao San, Robert, Lenny, Matthew,
Charlene, Abagatnan and Ortea should each receive the amount of P100,000.00 as moral damages. Per
computation, the total amount of moral damages is P700,000.00 and not P500,000.00 as fixed by the RTC and
the Court of Appeals.

Finally, we observed that the RTC and the Court of Appeals denominated the crime committed by appellants in
the present case as the special complex crime of kidnapping for ransom with double homicide since two of the
kidnap victims were killed or died during the kidnapping. The word "double" should be deleted therein.
Regardless of the number of killings or deaths that occurred as a consequence of the kidnapping, the
appropriate denomination of the crime should be the special complex crime of kidnapping for ransom with
homicide.
WHEREFORE, the Decision, dated 14 August 2006, and Resolution, dated 18 October 2006, of the Court of
Appeals in CA-G.R. CR-H.C. No. 02301 is hereby AFFIRMED with the following MODIFICATIONS: (1) the
total amount of civil indemnity is P150,000.00; (2) the total amount of exemplary damages is P700,000.00; (3)
the total amount of moral damages is P700,000.00; and (4) the appropriate denomination of the crime
committed by appellants is the special complex crime of kidnapping for ransom with homicide.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ANTONIO T. CARPIO* RENATO C. CORONA**

Associate Justice Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision/Resolution were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

* Per Special Order No. 568, dated 12 February 2009, signed by Chief Justice Reynato S. Puno, designating
Associate Justice Antonio T. Carpio to replace Associate Justice Ma. Alicia Austria-Martinez, who is on official
leave under the Court’s Wellness Program.
** Associate Justice Renato C. Corona was designated to sit as additional member replacing Associate Justice

Antonio Eduardo B. Nachura per Raffle dated 24 September 2007.

1 Penned by Associate Justice Martin S. Villarama, Jr. with Associate Justices Lucas P. Bersamin and Celia C.

Librea-Leagogo concurring; rollo, pp. 3-34.

2 CA rollo, p. 445.
3 Id. at 48-61.
4 Records, pp. 42-43.
5 Id. at 72-78 & 94-96.
6 TSN, 26 October 1999, pp. 3-14; TSN, 11 August 2000, pp. 3-7; TSN, 21 September 2000, pp. 2- 8.
7 TSN, 26 October 1999, pp. 16-17; TSN, 11 August 2000, p. 7.
8 Records, p. 34.
9 Id.
10 TSN, 26 October 1999, pp. 16-23; TSN, 7 December 1999, pp. 2-5; TSN, 11 August 2000, pp. 8- 9.
11 TSN, 7 December 1999, pp. 4-7.
12 Id. at 7-8; TSN, 11 August 2000, pp. 10-12.
13 Records, p. 35.
14 Id; TSN, 11 August 2000, pp. 12-14.
15 TSN, 7 December 1999, pp. 8-9; TSN, 11 August 2000, pp. 14-15; Records, p. 35.
16 Records, pp. 15-17.
17 Id. at 5, 8, 12, & 24-28.
18 Id. at 13-14 & 33, 35, & 38.
19 Id. at 46-48, 63-64 & 302-306.
20 Id. at 220-222.
21 Id. at 223.
22 Id. at 224.
23 Id. at 225-228.
24 Id. at 229-231.
25 Id. at 233-235.
26 Id. at 236-237.
27 Id. at 238.
28 Id. at 302-306.
29 Id. at 312-316.
30 Id. at 317-318.
31 TSN, 7 June 2001, pp. 3-21.
32 TSN, 10 July 2001, pp. 3-6.
33 Id. at 10-16; TSN, 21 August 2001, pp. 3-14.
34 TSN, 6 March 2001, pp. 3-10.
35 TSN, 24 May 2001, pp. 2-9.
36 Records, Volume VI, Index of Exhibits.
37 Id.
38 Records, p. 357.
39 CA rollo, p. 61.
40 G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
41 Rollo, p. 34.
42 CA rollo, pp. 85-132, 148-164 & 198-219.
43 Id. at 94-95, 150-151 & 200-201.
44 People v. Guevarra, G.R. No. 182192, 29 October 2008.
45 TSN, 26 October 1999, pp. 14 & 22.
46 TSN, 11 August 2001, pp. 6, 9, 10, 18 & 19.
47 TSN, 21 September 2000, pp. 6, 7, 8, 10, 14, 15, 19,
48 TSN, 7 December 1999, p. 51; TSN, 8 February 2000, p. 11; TSN, 19 September 2000, p. 3.
49 TSN, 19 September 2000, p. 3.
50 TSN, 8 February 2000, p. 8; TSN, 21 September 2000, p. 14.
51 TSN, 14 January 2000, p. 38.
52 TSN, 7 December 1999, p. 26; TSN, 14 January 2000, p. 32; TSN, 19 September 2000, p. 19.
53 TSN, 26 October 1999, p. 14; TSN, 19 September 2000, p. 5; TSN 21 September 2000, p. 10.
54 TSN, 19 September 2000, p. 14; TSN 21 September 2000, p. 7.
55 357 Phil. 924, 933-934 (1998).
56 People v. Aguila, G.R. No. 171017, 6 December 2006, 510 SCRA 642, 658.
57 People v. Ubaldo, 396 Phil. 509, 520 (2000).
58 TSN, 26 September 2000, p. 14.
59 People v. Fajardo, Jr., G.R. No. 173022, 23 January 2007, 512 SCRA 360, 373.
60 People v. Dadles, 343 Phil. 916, 924 (1997).
61 People v. Dorico, 153 Phil. 458, 475 (1973).
62 People v. Geronimo, 153 Phil. 1, 10 (1973).
63 At large.
64 Records, pp. 312-318.
65 People v. Fabro, 342 Phil. 708, 721 (1997).
66 Id.
 67 People v. Base, 385 Phil. 803, 815 (2000).
68 Id.
69 People v. Sayaboc, 464 Phil. 824, 839 (2004).
70 People v. Agustin, 310 Phil. 594, 612 (1995).
71 People v. Olermo, 454 Phil. 147, 165 (2003).
72 Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988, 162 SCRA 642, 653.
73 People v. Deniega, G.R. No. 103499, 29 December 1995, 251 SCRA 626, 637.
74 People v. Velarde, 434 Phil. 102, 119 (2002).
75 People v. Base, supra note 67.
76 Records, pp. 312-318.
77 TSN, 25 September 2001 and 27 September 2001.
78 TSN, 27 September 2001, pp. 5-9.
79 Id. at 9-15.
80 TSN, 25 September 2001, pp. 2-14.
81 Id. at 14-19.
82 People v. Velarde, supra note 74.
83 TSN, 27 September 2001, p. 5.
84 Id.
85 TSN, 25 September 2001, pp. 4-5.
86 Id. at 6.
87 Supra note 65 at 726.
88 People v. Mojello, 468 Phil. 944, 954 (2004).
89 People v. Base, supra note 67.
90 People v. Bagnate, G.R. Nos. 133685-86, 20 May 2004, 428 SCRA 633, 651.
91 People v. Fabro, supra note 65.
92 Records, p. 18.
93 Id. at 19.
94 229 Phil. 577, 582 (1986).
95 People v. Bagnate, supra note 90.
96 Santos v. Sandiganbayan, 400 Phil. 1175, 1206 (2000).
97 G.R. No. 88451, 5 September 1991, 201 SCRA 364, 377.
98 230 Phil. 560, 574 (1986).
99 People v. Guevarra, supra note 44.
100 People v. Montesa, G.R. No. 181899, 27 November 2008.
101 TSN, 6 March 2001, p. 3.
102 Id. at 11-12.
103 TSN, 22 May 2001, p. 6.
104 People v. Guevarra, supra note 44; People v. Larranaga, G.R. Nos. 138874-75, 21 July 2005, 463 SCRA 652,

662; People v. Calumpang, G.R. No. 158203, 31 March 2005, 454 SCRA 719, 736; People v. Datingginoo, G.R.
No. 95539, 14 June 1993, 223 SCRA 331, 335.
105 People v. Fajardo, Jr., supra note 59.
106 People v. Jatulan, G.R. No. 171653, 24 April 2007, 522 SCRA 174, 183.
107 Id. at 187.
108 Id.
109 Id.
110 G.R. No. 170236, 31 August 2006, 500 SCRA 704, 719.
111 New Civil Code, Article 2229.
112 New Civil Code, Article 2223.
113 People v. Garalde, G.R. No. 173055, 13 April 2007, 521 SCRA 327, 355; People v. Martinez, 469 Phil. 558,

578 (2004); People v. Bisda, 454 Phil. 194, 239 (2003).

114 People v. Garalde, id.; People v. Borromeo, 380 Phil. 523, 531 (2000); People v. Reyes, 329 Phil. 1043, 1049

(1996).