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May 18, 1959

G.R. No. L-10853


THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
SALVADOR PONELAS Y INAJE AND
JAVIER ENORIO Y HERNANDEZ,
defendants-appellants.
BAUTISTA ANGELO, J.:
Salvador Ponelas and Javier Enorio were
charged with rape before the Court of First
Instance of Manila. Both were found guilty
and sentenced each to suffer an
indeterminate penalty of from 12 years of
prision mayor to 20 years of reclusion
temporal, to indemnify jointly and severally
the heirs of the deceased in the sum of
P5,000.00 and to pay the costs.
Both appealed to the Court of Appeals.
Pending appeal, Ponelas moved to withdraw
his appeal which was granted. And when
counsel for the accused gave notice that he
would only raise questions of law, the case
was certified to this Court as required by law.
In the morning of April 25, 1955, Enrique
Marcelo, a coffee vendor, went to Estero de
la Quinta, near Echague, Manila, to answer a
call for nature and upon reaching the place,
he saw a woman in the river drowning
whereupon he jumped and brought the girl to
the bank to resuscitate her through artificial
respiration. In the meantime, a mobile patrol
arrived after having been informed of the
drowning woman, while Salvador Ponelas
informed a police precinct of the drowning
incident. A policeman questioned the girl and
asked her why she jumped into the river. She
replied that she was raped by two men,
pointing to Ponelas as one of them who was
then around. Ponelas said nothing when he
was pointed to. The woman was placed in an
ambulance and taken to the North General
hospital where she died the following
afternoon of "respiratory failure due to
marked congestion and edema of the lungs
following submersion in water." The vaginal
smear taken from her private organ was
found positive for several complete sperm
cells.
Ponelas was taken to the police station and
upon being investigated by a policeman, he
admitted having sexual intercourse with the
woman implicating one Javier Enorio. He
stated that the latter used force upon the girl
who fought with her wooden shoes and
allowed her to jump into the water which she
threatened to do because Javier thought that
she was mere bluffing. His statements were
taken down in writing and were signed by
him. Javier Enorio was subsequently arrested

and investigated, and he too admitted his


participation in the rape. His statements were
also taken down in writing and signed by him.
After the investigation, the two were taken to
the scene of the crime where they enacted
how they abused and ravished the woman.
Photographs of the reenactment were taken.
We are only concerned here with the appeal
of Javier Enorio since, as already stated, the
appeal of his co-accused Ponelas was
withdrawn. And in this instance, his counsel
merely raises the question whether the trial
court had validly acquired jurisdiction over the
case in view of the testimony given in court
by Leonor Sarabia who signed the complaint
that gave rise to the prosecution of the two
defendants. In this connection, counsel poses
the following questions: since the crime of
rape can only be prosecuted upon complaint
of the offended party, her parents,
grandparents, or guardian, does failure to
comply with this requirement affect the
jurisdiction of the trial court?
It appears that when the victim died as a
result of her attempt to commit suicide by
jumping into the river, the authorities waited
for her relatives to claim for her body which
was kept in the morgue for sometime.
Apparently, the deceased had neither
parents, grandparents, or relatives. Later,
however, one Leonora Sarabia came along
inquiring about niece of hers who
disappeared, and so she was taken to the
morgue. After the coffin was opened and
Leonor and her brother were allowed to
examine the cadaver, they stated that the
victim was their missing niece and apparently
because she made the authorities know that
she was her guardian, Leonor was taken to
the city fiscal's office where she filed the
complaint which gave rise to the prosecution
of Ponelas and Enorio.
It developed, however, after the prosecution
had rested its case, that Leonor was
presented as witness by the defense and
testified that she made a mistake in her
identification claiming that although the
deceased bore a marked similarity to her
missing niece, she was not the one because
her niece turned out to be alive. According to
Leonor, the name of her missing niece was
Amalia Sarabia whereas the name of the
victim was Flora de Cesareo. And in view of
this change in the attitude of Leonor Sarabia,
counsel for the defense now contends, as he
did in the lower court, that the latter lost
jurisdiction over the case, invoking Article 344
of the Revised Penal Code which provides
that the offense of rape can only be
prosecuted upon the complaint filed by the

offended party, her parents, grandparents or


guardian.
While under Article 344 abovementioned the
offense of rape can only be prosecuted upon
the complaint filed by the offended party, her
parents, grandparents or guardian, and that
unless this requirement is complied with the
prosecution may fail on the ground of lack of
jurisdiction, we believe however that in this
particular case, it cannot be successfully
maintained that there is a failure of
compliance with this requirement it appearing
that Leonor Sarabia has filed the complaint
as guardian of the victim after satisfying
herself that the one lying in the morgue which
she carefully examined and identified was
really her niece of which she stood as her
guardian in the City of Manila. While Leonor
on the witness stand affirmed that she
committed a mistake in the identification of
the victim, her testimony was not however
given credence by the trial court considering
her wavering attitude and the apparent
discrepancies noted in her testimony.
Thus, the trial court said on this point: "The
Court entertains serious doubts on the
sincerity of the defense witness Leonor
Sarabia who claims that she made a mistake
in the identification of the victim." The court
further commented: "Assuming for the sake
of argument that there was a marked
similarity in the facial features of the
deceased and Amalia Sarabia and assuming
further that by sheer coincidence both the
victim and Amalia have a scar in their left
legs, all of which might have led Leonor
Sarabia into error as to the real identity of the
victim, Leonor Sarabia could not have been
mistaken as to the names. The victim's name
is Flora and Leonor's niece was named
Amalia. Besides, if Leonor was not really sure
of the identity of the victim, why did she
subscribe to the complaint?" And then the
court concluded: "Leonor Sarabia of her own
accord and free will and as guardian of the
victim, instituted the original action. Such
complaint, the Court believes, is sufficient to
confer jurisdiction upon the court to take
cognizance or try on the case on the merits."
The foregoing, being a finding of fact that
which is binding upon this Court in view of the
fact that this appeal was taken on purely
questions of law, we have no other alternative
than to conclude that Leonor Sarabia filed the
present action as guardian of the victim and
as such complaint conferred jurisdiction upon
the trial court to act on the case. The lower
court, therefore, acted properly in denying the
motion to dismiss filed by the defense.
Wherefore the decision appealed from insofar
as appellant Javier Enorio is concerned is

affirmed, with one-half of the costs against


said appellant.
G.R. No. L-10853 May 18, 1959
THE PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee, vs. SALVADOR PONELAS
Y INAJE AND JAVIER ENORIO Y
HERNANDEZ, Defendants-Appellants.
BAUTISTA ANGELO, J.: chanrobles virtual
law library
Salvador Ponelas and Javier Enorio were
charged with rape before the Court of First
Instance of Manila. Both were found guilty
and sentenced each to suffer an
indeterminate penalty of from 12 years of
prision mayor to 20 years of reclusion
temporal, to indemnify jointly and severally
the heirs of the deceased in the sum of
P5,000.00 and to pay the
costs.chanroblesvirtualawlibrary chanrobles
virtual law library
Both appealed to the Court of Appeals.
Pending appeal, Ponelas moved to withdraw
his appeal which was granted. And when
counsel for the accused gave notice that he
would only raise questions of law, the case
was certified to this Court as required by
law.chanroblesvirtualawlibrary chanrobles
virtual law library
In the morning of April 25, 1955, Enrique
Marcelo, a coffee vendor, went to Estero de
la Quinta, near Echague, Manila, to answer a
call for nature and upon reaching the place,
he saw a woman in the river drowning
whereupon he jumped and brought the girl to
the bank to resuscitate her through artificial
respiration. In the meantime, a mobile patrol
arrived after having been informed of the
drowning woman, while Salvador Ponelas
informed a police precinct of the drowning
incident. A policeman questioned the girl and
asked her why she jumped into the river. She
replied that she was raped by two men,
pointing to Ponelas as one of them who was
then around. Ponelas said nothing when he
was pointed to. The woman was placed in an
ambulance and taken to the North General
hospital where she died the following
afternoon of "respiratory failure due to
marked congestion and edema of the lungs
following submersion in water." The vaginal
smear taken from her private organ was
found positive for several complete sperm
cells.chanroblesvirtualawlibrary chanrobles
virtual law library
Ponelas was taken to the police station and
upon being investigated by a policeman, he
admitted having sexual intercourse with the
woman implicating one Javier Enorio. He
stated that the latter used force upon the girl

who fought with her wooden shoes and


allowed her to jump into the water which she
threatened to do because Javier thought that
she was mere bluffing. His statements were
taken down in writing and were signed by
him. Javier Enorio was subsequently arrested
and investigated, and he too admitted his
participation in the rape. His statements were
also taken down in writing and signed by him.
After the investigation, the two were taken to
the scene of the crime where they enacted
how they abused and ravished the woman.
Photographs of the reenactment were
taken.chanroblesvirtualawlibrary chanrobles
virtual law library
We are only concerned here with the appeal
of Javier Enorio since, as already stated, the
appeal of his co-accused Ponelas was
withdrawn. And in this instance, his counsel
merely raises the question whether the trial
court had validly acquired jurisdiction over the
case in view of the testimony given in court
by Leonor Sarabia who signed the complaint
that gave rise to the prosecution of the two
defendants. In this connection, counsel poses
the following questions: since the crime of
rape can only be prosecuted upon complaint
of the offended party, her parents,
grandparents, or guardian, does failure to
comply with this requirement affect the
jurisdiction of the trial court?chanrobles virtual
law library
It appears that when the victim died as a
result of her attempt to commit suicide by
jumping into the river, the authorities waited
for her relatives to claim for her body which
was kept in the morgue for sometime.
Apparently, the deceased had neither
parents, grandparents, or relatives. Later,
however, one Leonora Sarabia came along
inquiring about niece of hers who
disappeared, and so she was taken to the
morgue. After the coffin was opened and
Leonor and her brother were allowed to
examine the cadaver, they stated that the
victim was their missing niece and apparently
because she made the authorities know that
she was her guardian, Leonor was taken to
the city fiscal's office where she filed the
complaint which gave rise to the prosecution
of Ponelas and
Enorio.chanroblesvirtualawlibrary chanrobles
virtual law library
It developed, however, after the prosecution
had rested its case, that Leonor was
presented as witness by the defense and
testified that she made a mistake in her
identification claiming that although the
deceased bore a marked similarity to her
missing niece, she was not the one because
her niece turned out to be alive. According to

Leonor, the name of her missing niece was


Amalia Sarabia whereas the name of the
victim was Flora de Cesareo. And in view of
this change in the attitude of Leonor Sarabia,
counsel for the defense now contends, as he
did in the lower court, that the latter lost
jurisdiction over the case, invoking Article 344
of the Revised Penal Code which provides
that the offense of rape can only be
prosecuted upon the complaint filed by the
offended party, her parents, grandparents or
guardian.chanroblesvirtualawlibrary
chanrobles virtual law library
While under Article 344 abovementioned the
offense of rape can only be prosecuted upon
the complaint filed by the offended party, her
parents, grandparents or guardian, and that
unless this requirement is complied with the
prosecution may fail on the ground of lack of
jurisdiction, we believe however that in this
particular case, it cannot be successfully
maintained that there is a failure of
compliance with this requirement it appearing
that Leonor Sarabia has filed the complaint
as guardian of the victim after satisfying
herself that the one lying in the morgue which
she carefully examined and identified was
really her niece of which she stood as her
guardian in the City of Manila. While Leonor
on the witness stand affirmed that she
committed a mistake in the identification of
the victim, her testimony was not however
given credence by the trial court considering
her wavering attitude and the apparent
discrepancies noted in her
testimony.chanroblesvirtualawlibrary
chanrobles virtual law library
Thus, the trial court said on this point: "The
Court entertains serious doubts on the
sincerity of the defense witness Leonor
Sarabia who claims that she made a mistake
in the identification of the victim." The court
further commented: "Assuming for the sake
of argument that there was a marked
similarity in the facial features of the
deceased and Amalia Sarabia and assuming
further that by sheer coincidence both the
victim and Amalia have a scar in their left
legs, all of which might have led Leonor
Sarabia into error as to the real identity of the
victim, Leonor Sarabia could not have been
mistaken as to the names. The victim's name
is Flora and Leonor's niece was named
Amalia. Besides, if Leonor was not really sure
of the identity of the victim, why did she
subscribe to the complaint?" And then the
court concluded: "Leonor Sarabia of her own
accord and free will and as guardian of the
victim, instituted the original action. Such
complaint, the Court believes, is sufficient to

confer jurisdiction upon the court to take


cognizance or try on the case on the merits."
The foregoing, being a finding of fact that
which is binding upon this Court in view of the
fact that this appeal was taken on purely
questions of law, we have no other alternative
than to conclude that Leonor Sarabia filed the
present action as guardian of the victim and
as such complaint conferred jurisdiction upon
the trial court to act on the case. The lower
court, therefore, acted properly in denying the
motion to dismiss filed by the
defense.chanroblesvirtualawlibrary
chanrobles virtual law library
Wherefore the decision appealed from insofar
as appellant Javier Enorio is concerned is
affirmed, with one-half of the costs against
said appellant.chanroble
G.R. No. L-47941 April 30, 1985
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
JAIME TOMOTORGO y ALARCON,
defendant-appellant.
ALAMPAY, J.:
Jaime Tomotorgo y Alarcon, the accusedappellant in this case, appeals from the
decision rendered on December 22, 1977, by
the Court of First Instance of Camarines Sur,
Branch IV, in Criminal Case No. 403 of said
court finding him guilty of the crime of
parricide for having killed his wife Magdalena
de los Santos. The dispositive portion of said
judgment reads, as follows:
WHEREFORE, in view of the foregoing
considerations, the accused Jaime
Tomotorgo y Alarcon is hereby condemned to
suffer the penalty of reclusion perpetua and
to indemnify the heirs of the deceased
Magdalena delos Santos in the sum of
P12,000.00 without subsidiary imprisonment,
plus costs. And considering the
circumstances under which the offense was
committed, the court hereby recommends
executive clemency for him, after serving the
minimum of the medium penalty of prision
mayor.
Let copy of this decision be furnished, his
Excellency, the President of the Philippines,
and the Chairman of the Board of Pardons
and Parole.
SO ORDERED.
Given at Naga City, this 22nd day of
December, 1977.
SGD. ALFREDO S. REBUENA
Judge (Rollo, pg. 10)
The facts of this case as recited in the
decision of the trial court and in the appellee's
brief stand uncontroverted and undisputed.

From the evidence submitted it is disclosed


that the victim, Magdalena de los Santos,
was the wife of the herein accused. Several
months prior to the occurrence of the fatal
incident on June 23, 1977, Magdalena de los
Santos had been persistently asking her
husband to sell the conjugal home which was
then located at Sitio Dinalungan, Barangay
Cabugao, Municipality of Siruma, Camarines
Sur. She wanted their family to transfer to the
house of her husband's in-laws which is in the
town of Tinambac, Camarines Sur. (TSN, pp.
6-10, December 13, 1977). Accused
Tomotorgo would not accede to his wife's
request. He did not like to abandon the house
wherein he and his wife were then living.
Furthermore, he had no inclination to leave
because he has many plants and
improvements on the land which he was then
farming in said municipality of Siruma,
Camarines Sur, a town very far from the
place of his in-laws where his wife desired
their family to transfer to.
On June 23, 1977, at about seven o'clock in
the morning, the accused left his home to
work on his farm Upon his return at about
nine o'clock that same morning. He found his
wife and his three-month old baby already
gone. He proceeded to look for both of them
and sometime later on, on a trail about two
hundred (200) meters from their home, he
finally saw his wife carrying his infant son and
bringing a bundle of clothes. He asked and
pleaded with his wife that she should return
home with their child but she adamantly
refused to do so. When appellant sought to
take the child from his wife, the latter threw
the baby on the grassy portion of the trail
hereby causing the latter to cry. This conduct
of his wife aroused the ire of the herein
accused. Incensed with wrath and his anger
beyond control, appellant picked lip a piece of
wood nearby and started hitting his wife with
it until she fell to the ground complaining of
severe pains on her chest. Realizing what he
had done, the accused picked his wife in his
arms and brought her to their home. He then
returned to the place where the child was
thrown and he likewise took this infant home.
Soon thereafter, Magdalena de los Santos
died despite the efforts of her husband to
alleviate her pains.
After the accused changed the dress of his
wife, he reported the tragic incident to the
Barangay Captain of their place who brought
him to Policeman Arellosa to whom the
accused surrendered. He also brought with
him the piece of wood he used in beating his
wife.
Charged with the crime of parricide, the
accused at his arraignment on November 24,

1977, with assistance from his counsel deoficio, pleaded not guilty to the said offense.
However, when his case was called for trial
on December 13, 1977, his counsel
manifested to the court that after his
conference with the accused, the latter
expressed a desire to change his previous
plea of not guilty to that of guilty. Accordingly,
and upon motion by the counsel of the
accused and without objection on the part of
the prosecution, the trial court allowed the
accused to withdraw his original plea. Upon
being re-arraigned, the accused entered a
plea of guilty. He confirmed the
manifestations made by his counsel to the
court regarding his desire to change his initial
plea. He expressed his realization of the
gravity of the offense charged against him
and the consequences of his plea. His
counsel was then permitted by the court to
establish the mitigating circumstances which
were then invoked in favor of the accused.
After the accused had testified and upon his
plea given in open court, the court below
found him guilty of the crime of parricide, but
with three mitigating circumstances in his
favor, namely: voluntary surrender, plea of
guilty, and that he acted upon an impulse so
powerful as naturally to have produced
passion and obfuscation.
With the imposition by the court below of the
penalty of reclusion perpetua on the herein
accused and the subsequent denial of his
motion for reconsideration of the judgment
rendered against him, the accused through
his counsel filed a notice of appeal to this
Court.
In his appeal, accused argues and contends
that the lower court erred:
1. In disregarding its own findings of fact
which showed manifest lack of intent to kill;
2. In disregarding the provisions of Article 49
of the Revised Penal Code which prescribes
the proper applicable penalty where the crime
committed is different from that intended;
3. In not following the mandatory sequence of
procedures for determining the correct
applicable penalty;
4. In denying the appellant the benefits of the
Indeterminate Sentence Law. (Appellant's
Brief, pg. 1, pars. 1-4)
We find no merit in the appeal of the accused
herein which assails only the correctness of
the penalty imposed by the trial court on him.
Appellant submits that the penalty for the
felony committed by him which is parricide
being higher than that for the offense which
he intended to commit, and which he avers to
be that of physical injuries only, the provisions
of Article 49 of the Revised Penal Code which
relate to the application of penalties should

have been observed and followed by the trial


court. The said provision of law which
accused invokes provides that:
ART. 49. Penalty to be imposed upon the
principals when the crime committed is
different from that intended in cases in which
the felony committed is different from that
which the offender intended to commit, the
following rules shag be observed;
1. If the penalty prescribed for the felony
committed be higher than that corresponding
to the offense which the accused intended to
commit, the penalty corresponding to the
latter shall be imposed in its maximum period.
xxx xxx xxx
Continuing, appellant argues in his appeal
brief submitted to this Court, that:
xxx xxx xxx
The felony actually committed, parricide. has
a higher penalty (reclusion perpetua to death)
than the felony intended, qualified physical
injuries (reclusion temporal medium and
maximum). Hence, since the penalty
corresponding to the felony intended shall be
imposed in its maximum period, the
prescribed penalty is therefore reclusion
temporal maximum. This is a divisible penalty.
Under Article 64, sub-par. 5, of the Penal
Code,
When there are two or more mitigating
circumstances and no aggravating
circumstances are present, the court shall
impose the penalty next lower to that
prescribed by law, in the period that it may
deem applicable, according to the number
and nature of such circumstances.
The trial court itself found "that the accused is
entitled to three (3) mitigating circumstances
with no aggravating circumstances, namely:
voluntary surrender, plea of guilty, and
obfuscation. We submit that the plea of guilty,
which, as we had shown earlier, was
improvidently made, should no longer be
considered. This leaves only two mitigating
with no aggravating. Sufficient compliance
with the law. Hence, an automatic lowering of
the penalty by one degree, or to reclusion
temporal medium This being a case where a
period constitutes the entire range of the
penalty prescribed, and therefore, also a
degree. (Appellant's Brief, pp. 8-9)
Appellant maintains the belief that he should
be punished only for the offense he intended
to commit which he avers to be serious
physical injuries, qualified by the fact that the
offended party is his spouse. Pursuant to the
sub-paragraph of paragraph 4 of Art. 263 of
the Revised Penal Code and as his wife is
among the persons mentioned in Art. 246 of
the same code, appellant contends that the
penalty imposable should then be reclusion

temporal in its medium and maximum


periods. On this mistaken premise, appellant
therefore claims that the penalty prescribed
by law for his offense is divisible and he
should thus be entitled to the benefits of the
Indeterminate Sentence Law.
These contentions of the accused are
manifestly untenable and incorrect. Article 4
of the Revised Penal Code expressly states
that criminal liability shall be incurred by any
person committing a felony (delito) although
the wrongful act be different from that which
he intended and that the accused is liable for
all the consequences of his felonious acts.
The reference made by the accused to Article
263 of the Revised Penal Code which
prescribes graduated penalties for the
corresponding physical injuries committed is
entirely misplaced and irrelevant considering
that in this case the victim died very soon
after she was assaulted. It will be, therefore,
illogical to consider appellant's acts as falling
within the scope of Article 263 of the Revised
Penal Code. The crime committed is parricide
no less.
We are in complete accord with and we
sustain the ruling made by the courts below
that the accused is not entitled to the benefits
of the Indeterminate Sentence Law. The court
sustains the submissions of the appellee that

... Article 49 of the Revised Penal Code does


not apply to cases where more serious
consequences not intended by the offender
result from his felonious act because, under
Article 4, par. I of the same Code, he is liable
for all the direct and natural consequences of
his unlawful act. His lack of intention to
commit so grave a wrong is, at best mitigating
(Article 13, par. 3).
Article 49 applies only to cases where the
crime committed is different from that
intended and where the felony committed
befalls a different person (People vs.
Albuquerque, 59 Phil. 150).
Article 246 of the Revised Penal Code
punished parricade with the penalty of
reclusion perpetua to death, which are two
indivisible penalties. As the commission of the
act was attended by mitigitating
circumstances with no aggravating
circumstances, the lesser penalty, which is
reclusion perpetua, should be imposed
(People vs. Laureano, et al., 71 Phil. 530;
People vs. Francisco, 78 Phil. 697; People
vs. Belarmino, 91 Phil. 118) Appellee's Brief,
pp. 6-7). (Emphasis supplied)
We hold that the fact that the appellant
intended to maltreat the victim only or inflict
physical imjuries does not exempt him from
liability for the resulting and more serious

crime committed. In the case of People vs.


Climaco Demiar, 108 Phil. 651, where the
accused therein had choked his mother in a
fit of anger because the latter did not prepare
any food for him, it was ruled that hte crime
committed by Demiar is parricide (Article 246,
Revised Penal Code), the deceased victim of
his criminal act being his legitimate mother.
Said crime was declared as punishable with
reclusion perpetua to death. As the mitigating
circumstance of alck of intent to commit so
grave a wrong. (Article 13 (3 Id.) The penalty
imposed on the herein accused is therefore
correct in the light of the relevant provisions
of law and jurisprudence.
The trial court in its consideration of this case
had added a recommendation that "executive
clemency be extended to the accusedappellant after his service of the minimum of
the medium penalty of prison mayor." The
Solicitor General likewise concludes and
prays in the People's Brief that in view of the
circumstances which attended the
commission of the offense, a
recommendation for the commutation of the
penalty would be appropriate. (Appellee's
Brief, pg. 7). This Court is constrained to take
note that the accused-appellant is said to
have been in detention since June 23, 1977
or for more than seven years already. This
Court can do no less than express its hope
that hte accused-appellant can be now
extended an absolute or conditional pardon
by the President of the Republic of the
Philippines or that there be a commutation of
his sentence so that he may qualify and be
eligible for parole.
WHEREFORE, the appealed judgment is
hereby affirmed without any pronouncement
as to costs.
Considering the circumstances which
attended the commission of the offense, the
manifest repentant attitude of the accused
and his remorse for his act which even the
trial court made particular mention of in its
decision and the recommendation made by
the Office of the Solicitor General as well as
number of years that the accused-appellant
had been imprisoned, this Court can do no
less than recommend that executive
clemency be extended to the accusedappellant, Jaime Tomotorgo y Alarcon, or that
his sentence be commuted so that he can
now qualify and be considered eligible for
parole. This recommendation of the Court
should be promptly brought to the attention of
the President of the Republic of the
Philippines by the proper authorities in whose
custody the herein accused has been placed.
Aside from this, let copy of this decision be
furnished the Office of the President of the

Republic of the Philippines and the Chairman


of the Board of Pardons and Parole.
September 28, 1935
G.R. No. 42607
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
JUAN QUIANZON, defendant-appellant.
RECTO, J.:
Charged with and convicted of the crime of
homicide in the Court of First Instance of
Ilocos Norte, and sentenced to an
indeterminate penalty of from six years and
one day of prision mayor, as minimum to
fourteen years, seven months and one day of
reclusion temporal, as maximum, Juan
Quianzon appeal to this court for the review
of the case.
On February 1, 1934, a novena for the
suffrage of the soul of the deceased person
was being held in the house of Victoria
Cacpal in a barrio, near the poblacion, of the
municipality of Paoay, Ilocos Norte, with the
usual attendance of the relatives and friends.
The incident that led to the filling of these
charges took place between 3 to 4 o'clock in
the afternoon. Andres Aribuabo, one of the
persons present, went to ask for food of Juan
Quianzon, then in the kitchen, who, to all
appearances, had the victuals in his care. It
was the second or third time that Aribuabo
approached Quianzon with the same purpose
whereupon the latter, greatly peeved, took
hold of a firebrand and applied ran to the
place where the people were gathered
exclaiming that he is wounded and was
dying. Raising his shirt, he showed to those
present a wound in his abdomen below the
navel. Aribuabo died as a result of this wound
on the tenth day after the incident.
There is no conflict between the prosecution
and the defense as regards the foregoing
facts. The question to be determined is who
wounded Aribuabo. The prosecution claims
that it was Juan Quianzon and, to prove it,
called Simeon Cacpal, Roman Bagabay,
Gregorio Dumlao and Julian Llaguno to the
witness stand.
The first witness, Simeon Cacpal, claims to
have witnessed the wounding of Andres
Aribuabo in the abdomen by Juan Quianzon.
However, we find the testimony of this
witness so improbable, incongruent and
contradictory that we consider meritorious the
claim of the defense that it was an error of the
lower court to have taken it into consideration
in formulating the findings of its judgment. Not
so with respect to the testimony of the other
witnesses. Roman Bagabay, one of the

persons present at said gathering, testified


that he saw Juan Quianzon apply a firebrand
to the neck of Andres Aribuabo who shortly
afterwards went toward the place where the
witness and the other guests were gathered,
telling that he was wounded and was going to
die and naming Juan Quianzon as the person
who wounded him. He also testified that Juan
Quianzon, upon being asked immediately by
him about the incident, admitted to him
attacked Aribuabo with a bamboo spit.
Gregorio Dumalao, a barrio lieutenant, who,
upon being informed of the incident, forthwith
conducted an investigation, questioned
Aribuabo and the latter told him that it was
the accused who had wounded him. He
likewise questioned the accused and the
latter, in turn, stated that he had wounded the
deceased with a bamboo spit. Upon being
brought before Juan Llaguno, chief of police
of Paoay, for questioning, Quianzon
confessed to Llaguno that he had applied a
firebrand to Aribuabo's neck and had later
wounded him with a bamboo spit. Before the
chief of police could put this confession of
Quianzon in writing, the later retracted,
denying that he had wounded Aribuabo, for
which reason in the affidavit Exhibit B the fact
of having applied a firebrand to Aribuabo's
neck appears admitted by Quianzon but not
of having wounded the deceased with a
bamboo spit.
The disinterestedness of these three
witnesses for the prosecution, Bagabay,
Dumalo and Llaguno, is not questioned by
the defense. Neither the accused, in his
testimony, nor his counsel, in the brief filed by
him in this court, was able to assign any
unlawful, corrupt or wicked motive that might
have actuated them to testify falsely in this
case and knowingly bring about the
imprisonment of an innocent person.
Bagabay is not even a relative of the
deceased. Dumlao, the barrio lieutenant, is a
nephew of the accused. Llaguno, chief of
police of Paoay, is an officer of the law whose
intervention of this case was purely in
compliance with his official duties. All the
appellant has been able to state in his brief to
question the credibility of these witnesses is
that they were contradicted by Simeon
Cacpal, the other witness for the prosecution,
who testified that he had not seen them
speak neither to Aribuabo nor to Quianzon in
the afternoon of the crime. But the position of
the defense in invoking Simeon Cacpal's
testimony for the purpose of discrediting the
other witnesses for the prosecution is
untenable, after having vigorously impeached
said testimony, branding it as improbable,
incongruent and contradictory. If Cacpal is a

false witness and the court believes this


claim of the defense as true , none of his
statements may be taken into account or
should exert any influence in the
consideration of the other evidence in the
case.
After discharging testimony of Simeon
Cacpal, the evidence presented by the
prosecution relative to the appellant's criminal
liability for the death of Andres Aribuabo,
briefly consists, first, in the victim's statement
immediately after receiving the wound,
naming the accused as the author of the
aggression, and the admission forthwith
made by the accused that he had applied a
firebrand to Aribuabo's neck and had
wounded him, besides, with a bamboo spit.
Both statements are competent evidence in
the law, admissible as a part of the res
gestae (section 279 and 298, No. 7, of the
Code of Civil Procedure; U.S. vs. Macuti, 26
Phil., 170; People vs. Portento and Portento,
48 Phil., 971). Second, in the extrajudicial
confession of the accused to the barrio
lieutenant, Dumlao, and later to the chief of
police Llaguno, in the same afternoon of the
crime, that he was the author of Aribuabo's
wound and that he had inflicted it by means
of a bamboo spit. Inasmuch as this
confession, although extrajudicial, is strongly
corroborated and appears to have been
made by the accused freely and voluntarily, it
constitutes evidence against him relative to
his liability as author of the crime charged
(U.S. vs. so Fo, 23 Phil., 379; People vs.
Cabrera, 43 Phil., 64, 82; U.S. vs. Jamino, 3
P.R.A., 52; Francisco's Quizzer on Evidence).
The defense of the accused consisted simply
in denying that he had wounded the
deceased and that he had confessed his guilt
to the witnesses Bagabay, Dumlao and
Llaguno. But such denial cannot prevail
against the adverse testimony of these three
veracious and disinterested witnesses, all the
more because neither the accused nor any
other witness for the defense has stated or
insinuated that another person, not the
accused, might be the author of the wound
which resulted in Aribuabo's death, and
because it is admitted by the defense that it
was the accused, whom Aribuabo had been
pestering with request for food, who attacked
the latter, burning his neck with a firebrand,
afetr which Aribuaboappeared wounded in
the abdomen, without the accused and the
witnesses for the defense explaining how and
by whom the aggression had been made.
It is contended by the defense that even
granting that it was the accused who inflicted
the wound which resulted in Aribuabo's
death, he should not be convicted of

homicide but only of serious physical injuries


because said wound was not necessarily fatal
and the deceased would have survived it had
he not twice removed the drainage which Dr.
Mendoza had placed to control or isolate the
infection. This contention is without merit.
According to the physician who examined
whether he could survive or not." It was a
wound in the abdomen which occasionally
results in traumatic peritonitis. The infection
was cause by the fecal matter from the large
intestine which has been perforated. The
possibility, admitted by said physician that the
patient might have survived said wound had
he not removed the drainage, does not mean
that the act of the patient was the real cause
of his death. Even without said act the fatal
consequence could have followed, and the
fact that the patient had so acted in a
paroxysm of pain does not alter the juridical
consequences of the punishable act of the
accused.
One who inflicts an injury on another is
deemed by the law to be guilty of homicide if
the injury contributes mediately or
immediately to the death of such other. The
fact that the other causes contribute to the
death does not relieve the actor of
responsibility. . . . (13 R. C.L., 748.)
Furthermore, it does not appear that the
patient, in removing the drainage, had acted
voluntarily and with the knowledge that he
was performing an act prejudicial to his
health, inasmuch as self-preservation is the
strongest instinct in living beings. It much be
assumed, therefore, that he unconsciously
did so due to his pathological condition and to
his state of nervousness and restlessness on
account of the horrible physical pain caused
by the wound, aggravated by the contract of
the drainage tube with the inflammed
peritoneum. "When the peritonitis is due to
traumatism, or to a perforation of the
stomach, intestine or gall-bladder, etc., it is
indicated by violent shivering and pain first
localized at a point in the abdomen,
extending later to the entire abdominal wall;
acute intolerable pain, which is aggravated by
the slightest movement, becoming
unbearable upon contact with the hand, a
rag, or the bedclothes. The pain is continuous
but it gives frequent paroxysms. The
abdomen is swollen, tense. Vomittings of the
greenish matter, which are very annoying and
terribly painful, take from the beginning and
continue while the disease lasts." (XVI
Spanish-America Encyclopaedic Dictionary,
176; see also XXI Encyclopaedia Britannica,
1911 ed., 171.) If to this is added the fact that
the victim in this case was mentally
deranged, according to the defense itself, it

becomes more evident that the accused is


wrong in imputing the natural consequences
of his criminal act to an act of his victim.
The question herein raised by the appellant
has already been finally settled by
jurisprudence. The Supreme Court of Spain,
in a decision of April 3, 1879, said in the case
similar to the present, the following:
"Inasmuch as a man is responsible for the
consequences of his act and in this case
the physical condition and temperament of
the offended party nowise lessen the evil, the
seriousness whereof is to be judged, not by
the violence of the means employed, but by
the result actually produced; and as the
wound which the appellant inflicted upon the
deceased was the cause which determined
his death, without his being able to counteract
its effects, it is evident that the act in question
should be qualified as homicide, etc."
In the case of People vs. Almonte (56 Phil.,
54), the abdominal wound was less serious
than that received by Aribuabo in this case,
as it was not penetrating, merely involving the
muscular tissue. In said case the death of the
victim was due to a secondary hemorrhage
produced twenty-four hours after the wound
had been inflicted, because of the "bodily
movements of the patient, who was in a state
of nervousness, sitting up in bed, getting up
and pacing about the room, as as a
consequence of which he internal vessels,
already congested because of the wound,
bled, and the hemorrhage thus produced
caused his death." The court in deciding the
question stated that "when a person dies in
consequence of an internal hemorrhage
brought on by moving about against the
doctor's orders, not because of carelessness
or a desire to increase the criminal liability of
his assailant, but because of his nervous
condition due to the wound inflicted by said
assailant, the crime is homicide and not
merely slight physical injuries, simply
because the doctor was of the opinion that
the wound might have healed in seven days."
The grounds for this rule of jurisprudence are
correctly set forth in 13 R.C.L., 751, as
follows:
While the courts may have vacilated from
time to time it may be taken to be settled rule
of the common law that on who inflicts an
injury on another will be held responsible for
his death, although it may appear that the
deceased might have recovered if he had
taken proper care of himself, or submitted to
a surgical operation, or that unskilled or
improper treatment aggravated the wound
and contributed to the death, or that death
was immediately caused by a surgical
operation rendered necessary by the

condition of the wound. The principle on


which this rule is founded is one of universal
application, and lies at the foundation of the
criminal jurisprudence. It is, that every person
is to be held to contemplate and to be
responsible for the natural consequences of
his own acts. If a person inflicts a wound with
a deadly weapon in such a manner as to put
life in jeopardy, and death follows as a
consequence of this felonious and wicked
act, it does not alter its nature or diminish its
criminality to prove that other causes cooperated in producing the fatal result. Indeed,
it may be said that neglect of the wound or its
unskillful and improper treatment, which are
of themselves consequences of the criminal
act, which might naturally follow in any case,
must in law be deemed to have been among
those which were in contemplation of the
guilty party, and for which he is to be held
responsible. But, however, this may be, the
rule surely seems to have its foundation in a
wise and practical policy. A different doctrine
would tend to give immunity to crime and to
take away from human life a salutary and
essential safeguard. Amid the conflicting
theories of the medical men, and the
uncertainties attendant upon the treatment of
bodily ailments and injuries, it would be easy
in many cases of homicide to raise a doubt as
to the immediate cause of death, and thereby
to open a wide door by which persons guilty
of the highest crime might escape conviction
and punishment.
Assuming that we should disregard Simeon
Cacpal's testimony, there is no evidence of
record that the crime charged was committed
by means of the knife, Exhibit A, and we only
have the extrajudicial admission of the
accused that he had committed it by means
of a bamboo spit with which the wound of the
deceased might have been caused because,
according to the physician who testified in this
case, it was produced by a "sharp and
penetrating" instrument.
Inasmuch as the mitigating circumstances of
lack of instruction and of intention to commit
so grave a wrong as the committed should be
taken into consideration in favor of the
appellant, without any aggravating
circumstances adverse to him, we modify the
appealed judgment by sentencing him to an
indeterminate penalty with a minimum of four
years of prision correccional and a maximum
of a eight years of prision mayor, affirming it
in all other respect, with cost to said
appellant.
September 7, 1931

G.R. No. 35006


THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
PURIFICACION ALMONTE, defendantappellant.
.
IMPERIAL, J.:
Purificacion Almonte is charged with the
crime of homicide, the information reading as
follows:
The undersigned provincial fiscal charges
Purificacion Almonte with the crime of
homicide, committed as follows:
That on or about October 1, 1930, in the
municipality of Sorsogon, Province of
Sorsogon, Philippine Islands, and within the
jurisdiction of this court, the aforementioned
accused did willfully, unlawfully, and
feloniously beat, attack, and assault one Felix
Te Sue with a knife, which she carried,
producing a wound in the abdomen which
was the immediate cause of the death of the
said Felix Te Sue.
Contrary to law.
Sorsogon, Sorsogon, November 7, 1930.
(Sgd.) JACINTO YAMZON
Provincial Fiscal
The accused pleaded not guilty, and after the
trial, at which she was represented by
counsel, she was convicted of the said crime
of homicide, and sentenced to fourteen years,
eight months, and one day of reclusion
temporal, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay
the costs. The defendant appealed.
The facts which have been proved beyond
question are as follows:
Until a week before the crime, the accused
lived maritally with the Chinaman Felix Te
Sue who was a married man. Because one
Miguela Dawal, with whom he had also lived
maritally, threatened to bring suit against him
unless he rejoined her, the Chinaman and the
accused voluntarily agreed to separate. From
that time on Te Sue lived in the barrio of
Guinlajon, municipality of Sorsogon, Province
of Sorsogon, together with the said Miguela
Dawal. On the morning of October 1, 1930,
the accused visited her former paramour and
on entering the house, found him with
Miguela. When Te Sue saw her, he
approached and told her to go away at once
because her new paramour might get jealous
and do her harm. The accused insisted upon
remaining, and on being pushed by Te Sue
and Miguela, feeling that she was being
unjustly treated, took hold of a small penknife
she carried and stabbed the man in the
abdomen. Horrified, perhaps, at her deed,
she fled to the street, leaving the blade

sticking in her victim's abdomen, and, taking


the first bus that chanced to pass, finally went
home. The injured man was at once taken to
the provincial hospital where he was given
first aid treatment, and Doctor Ortega
performed a slight operation upon him,
cleaning and sewing up his wound. It was not
serious, according to the doctor, and might be
healed in a week; but on the sixth day the
patient succumbed to complications which we
shall treat of later on. The relatives of the
deceased paid a little over P200 for the
hospital treatment and the expenses of his
last illness.
In this instance the defense assigns the
following alleged errors as committed by the
trial court in its judgment:
I. The trial court erred in holding that the
unnecessary movements of the deceased
while in the provincial hospital of Sorsogon
for medical treatment were caused by the
pain of the wound inflicted by the accused.
II. The trial court erred in holding the accused
criminally responsible for the secondary
hemorrhage which caused the death of the
deceased.
III. The trial court erred in holding the
accused responsible for the death of the
offended party as the direct and immediate
consequence of the wound inflicted by the
accused.
IV. The trial court erred in holding the
accused of the crime of homicide as charged
in the information instead of lesiones leves as
supported by the evidence in this case.
The first three assignments of error raise
questions of fact and what really caused the
death of the deceased. It is strongly argued
that the judgment appealed from is erroneous
in finding that the deceased's movements,
which Doctor Ortega declares were the cause
of the secondary hemorrhage that produced
his death, were due to the pain felt after the
operation and during his illness. It is
contended that according to the record, the
real cause of the movements was, so the
deceased himself declared, the excessive
warmth of the bed and the fact that he was
unaccustomed to such a bed. To ascertain
this important point requires a careful
examination of the evidence upon this
particular.
Doctor Eduardo Ortega, in charge of the
Sorsogon Provincial Hospital, a physician of
admitted ability and skill, speaking of the
patient's physical condition when he entered
the hospital, testified as follows:
Q.
What was the result of your
examination?
A.
I found a wound in the abdomen, on
the left side near the umbilical region; it was

not deep and did not penetrate very far, but it


passed through the muscle tissue.
Q.
What caused the death of Felix Te
Sue?
A.
He died of a secondary internal
hemmorhage.
Q.
How?
A.
The wound was caused by a certain
blow, because the penknife was not very
sharp; the force of the blow which introduced
the knife into the flesh produced a secondary
congestion of the internal organ so that any
unnecessary movement on the patient's part
would cause congestion of the veins, or
would make them more congested and cause
them to bleed.
Q.
And in the case of Felix Te Sue, did
they bleed?
A.
He began to bleed after he had
been twenty-four hours in the hospital.
Q.
Why do you call it a secondary
hemorrhage?
A.
There are many kinds of
hemorrhages: Primary, in this particular case,
if the wound had reached the internal organs
and severed the veins of those organs it
would be called a primary hemorrhage
because it was directly caused by the wound;
but there was no immediate hemorrhage after
the wound was inflicted, but twenty-four hours
later; in other words, there was what is called
a secondary hemorrhage.
Q.
You also said that Felix Te Sue had
made an unnecessary movement?
A.
Yes, sir.
Q.
Can you tell the court what were
those unnecessary movements?
A.
Those movements were the
following: The patient began by moving from
side to side; then he would sit up at night, and
perhaps jump out of bed, and begin walking
about; when asked why he did that, contrary
to medical instructions, he explained that he
could not lie down because the bed was to
warm, and that he was not used to lying to
bed.
Q.
Do you mean to say that the
patient's movements brought on the
secondary internal hemorrhage?
A.
Yes, sir, they produced the
secondary internal hemorrhage.
Q.
And he died because of that
secondary internal hemmorhage?
A.
Yes, sir.
Q.
Was the wound alone, as treated
by you, sufficient to cause the death of Felix
Te Sue?
A.
If the patient had lain in bed quietly,
in order to avoid increasing the congestion of
the internal veins, there would have been no
secondary hemorrhage.

Q.
But the wound you treated could
have been healed?
A.
Yes, sir; it could have been.
Q.
In how many days could it have
been healed?
A.
That wound, if there had been no
secondary infection, would have healed up in
a week.
Q.
You said that Felix Te Sue had
been asked why he moved about contrary to
the physician's instructions; what instructions
did you give him?
A.
As soon as he had been admitted
into the hospital, he was examined, and then
made to lie in bed. Medical treatment was
then administered, and he was given to
understand that he should remain in bed, for
any unnecessary movement might aggravate
his condition, and that what he needed was
complete rest.
Q.
If he had not made those
movements, do you think death would have
ensued?
A.
I am very sure he would not have
had that secondary hemorrhage, because as
a matter of fact, during the first twenty-four
hours he had no symptoms of having an
internal hemorrhage.
Q.
And that internal congestion of the
veins, although those veins contained more
blood than usual, would not have caused the
hemorrhage? That is to say, the veins would
not have burst, if the patient Felix Te Sue had
not moved about, as you have said?
A.
Yes, sir; that internal congestion
would have not burst if the patient had not
moved about.
Q.
Can you tell us, doctor, why
strangers who know nothing about the care of
the sick are placed in charge of a patient so
delicate that his moving may cause his death,
as indeed it did, in this case?
A.
The patient was not placed in the
care of strangers; we have nurses to attend
and see to the patient as often as it is
needed, besides the physician's visits to him;
but even in the presence of the doctor and
the hospital attendants, and after we had put
the patient to bed, he continued to struggle
with us.
Q.
Do you mean to say, then, that
Felix Te Sue was fastened in his bed, and in
spite of that he was able to leave it a walk
about?
A.
He left his bed the first day after the
operation, and immediately after it, when he
was not fastened in because he did not seem
to be violent. (Pages 16-22, transcript of the
stenographic notes.)
From the foregoing testimony it may be
inferred: That the deceased was stabbed on

the left side of the abdominal region, near the


navel; that the wound did not involve any
internal organ; that upon arriving at the
hospital, he was submitted to a minor
operation which consisted in cleaning,
medicating, and suturing the wound; that
upon his arrival, the patient was in a nervous
state; that during the operation they tied down
the patient; that immediately after the
operation Doctor Ortega admonished him to
keep quiet because any movement he might
make would change his pathological state for
the worse and bring about dangerous
complication; that in spite of this admonition
the deceased moved about, sitting up in bed,
getting up and pacing about the room; that
because of this, the internal vessels, already
congested because of the wound, bled, and
the hemorrhage thus produced caused his
death.
The defense contends, with which the
Attorney-General agrees, that according to
Doctor Ortega's testimony the determining
cause of Te Sue's death was not he wound
inflicted by the accused, but his own
carelessness in moving about against the
doctor's orders, which produced the internal
hemorrhage. We agree with both parties that
according to Doctor Ortega, the immediate
and determining cause of the death was none
other than the internal hemmorhage
produced by the rupture of the abdominal
blood vessels; but we cannot agree, in view
of the evidence, that the real cause of said
death was not the wound inflicted upon the
victim. Carefully analyzing Doctor Ortega's
testimony, we reach the inevitable conclusion
that the internal veins were congested from
the beginning because of the force of the
blow which produced the wound, for that is
what the doctor means when he says that
"the wound was caused by a certain blow,
because the penknife was not very sharp, the
force of the blow which introduced the knife
into the flesh produced a secondary
congestion of the internal organ so that an
unnecessary movement on the patient's part
would cause congestion of the veins, or
would make them more congested, causing
them to bleed"; and that what really impelled
the patient to violate the doctor's orders, by
sitting up in bed and pacing about the room,
was not, as the defense insinuates, a desire
to aggravate the criminal liability of the
accused, but simply his nervous condition,
which was noted from the moment he entered
the provincial hospital. It was not the warmth
of the bed or his not being used to it that
made the patient act as he did, but the
pathological state created by the illness
brought on by the wound from which he was

suffering. We are convinced that under


normal conditions, if the patient had not been
ill, he would not have violated the doctor's
orders, knowing, as he did, that the slightest
movement might occasion a complication or
internal hemorrhage capable of causing
death.
The point raised by Viada in volume 3 of his
work, pages 41 and 42, involves facts similar
to those established in this case, and we
believe the decision of the Supreme Court of
Spain is perfectly applicable to this case:
Even when the doctors say that the death
was due not so much to the wound, which in
a better constituted person would have
healed in thirty or forty days, as to the
patient's purely nervous temperament, his
irritability and other causes, all of which
depend upon his physical constitution:
should such a death be qualified as
HOMICIDE? The Supreme Court has ruled
affirmatively: "Inasmuch as a man is
responsible for the consequences of his act
and in this case the physical condition and
temperament of the offended party nowise
lessen the evil, the seriousness whereof is to
be judged, not by the violence of the means
employed, but by the result actually produced
and as the wound which the appellant
inflicted upon the deceased was the cause
which determined his death, without his being
able to counteract its effects, it is evident that
the act in question should be qualified as
homicide, etc." (Decision of April 3, 1879,
published in the Gazette on the 16th of June.)
In the case cited the doctors were of the
opinion that death was not an immediate
consequence of the wound received, but was
rather due to the victim's purely nervous
temperament, his irritability and other causes,
peculiar to his physical constitution. In the
case in question, it is sought to attribute the
internal hemorrhage that directly caused
death, not to the wound or injury, but the
patient's movements, overlooking the fact that
they were due to his nervous condition, and
that this state of nervousness could only be
the result of the wound inflicted by the
appellant. We hold, therefore, that the real
cause of death in this case was not the bodily
movements referred to, but the congestion of
the internal veins produced beforehand by
the force of the blow which caused the wound
and the nervous condition of the deceased.
In United States vs. Sornito (4 Phil., 357), we
held that "In crimes against the life of a
human being the results and effects of the
criminal acts must necessarily be taken into
consideration in order to establish the
seriousness and extent of the evil or injury
produced and to define the crime in

accordance with the law. It must also be


taken into consideration that the guilty parties
are responsible under the law for all the
unlawful acts executed by them in violation of
its principles and for all the consequences of
those acts."
In United States vs. Montes (6 Phil., 443), we
also held that "Where a person voluntarily
and with intent of injuring another commits an
act which is notoriously unlawful, he shall be
held responsible for the consequences of his
criminal action, even though when such
wrongful act constitutes the crime of homicide
it appears that he had no intention of killing
the deceased."
In United States vs. Navarro (7 Phil., 713), we
reaffirmed the same principle holding that
"`the firm and unalterable jurisprudence of the
Supreme Court (interpreting the Penal Code
now in force and effect) is that the crime of
homicide is committed when death ensues or
follows, as the result of a wound inflicted by
another, whether the death be the precise
and necessary consequence of the injuries or
wounds, or whether death resulted from
accidents caused or brought on by reason of
such wounds or injuries received by the
patient.' (Judgment of the Supreme Court of
Spain, May 8, 1890.) `It is the firm and
unalterable doctrine, and so held by the Court
of Cassation, that the aggressor is
responsible for all the natural consequences
of the aggression when these consequences
do not owe their origin to acts or malicious
omissions imputable to the assaulted party.'
(Judgment of the Supreme Court of Spain,
May 30, 1892.)"
The same doctrine was laid down in United
States vs. Monasterial (14 Phil., 391). Here it
was held among other things, "persons who
are responsible for an act constituting a crime
are also liable for all the consequences
arising therefrom and inherent therein, other
than those due to incidents entirely foreign to
the act executed, or which originate through
the fault or carelessness of the injured
person, which are exceptions to the rule not
arising in the present case."
At this juncture it is well to remember that, as
we stated in the beginning, the patient's
nervous condition when the complication or
internal hemorrhage which caused death set
in, was an inherent physiological condition
produced by the wound in the abdomen. It
goes without saying that if he had not been
wounded he would not have undergone that
extraordinary state and condition, nor have
had to leave his bed during the critical stage
of his illness.
Lastly, in United States vs. Zamora (32 Phil.,
218), we held that "One who performs a

criminal act should be held to liability for the


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

the umbilical region, which while it penetrated


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

persons attending him, he alone must be held


responsible for his own death, which resulted
from his carelessness; and such death
cannot be attributed to the person who
wounded him slightly, and who is, indeed,
responsible for the natural and logical
consequences of such a voluntary act, but
not for the death, which as we have seen,
was not a natural and logical consequence of
the wound.
Very similar to this are the cases cited by
Viada in volume V of the fifth edition of his
commentaries, where the Supreme Court of
Spain laid down the following doctrines:
QUESTION 22. If the immediate cause of
death was traumatic erysipelas complicated
with meningoencephalitis arising form the
erysipelas itself, and the remote and original
cause of the latter was the wound inflicted by
the defendant on the upper part of the
offended party's left parietal bone, although if
the victim were not predisposed to erysipelas,
had not gone out in the open, and had been
given proper medicine, it is probable the
accident would have been avoided and the
wound healed in thirty days. Is the person
who inflicted the wound guilty of homicide or
of physical injuries? The Supreme Court has
held in favor of the latter and lighter offense,
arguing to make the special circumstances
stated above qualify the act prosecuted as
consequences of grossly imprudent acts and
omissions of the injured person, which
unfortunately brought on his death, and which
in all justice and reason can only be imputed
to the latter, and not to the defendant, who
had no share in them and could not have
prevented them. (Decision of June 15, 1874,
Gazette for August 26th.) 5 Viada, 5th edition,
page 80.
QUESTION 23. When a wound in the head,
which is essential a less serious physical
injuries, gives rise to traumatic erysipelas,
which in turn produces cerebral meningitis
from which the person injured dies in eleven
days, and the doctors declare that the
erysipelas may have been due to the patient's
carelessness in constantly exposing himself
to a draft: Is the act homicide or merely less
serious physical injuries? The Audiencia of
Granada held in favor of the former, but upon
appeal on the ground that articles 419 and
433 of the Code had been violated, because
the crime of less serious physical injuries was
penalized as if it were homicide, the Supreme
Court held that the appeal had been well
taken, because according to the opinion of
the doctors, the erysipelas which preceded
the meningitis that produced death may have
been due to the patient's carelessness in
constantly exposing himself to a draft,

contrary to said doctors' orders; and as it is


not alleged that the other causes which might
have contributed to it actually occasioned the
death, there is some doubt, for a crime is
determined by the act wherein it consists, and
if this be so, the crime in question is none
other than less serious physical injuries.
(Decision of December 17, 1878, Gazette of
February 7, 1879.) 5 Viuda, 5th edition page
81.
QUESTION 24. If the verdict it is stated that
the wounds inflicted upon the deceased by
the defendant would have healed, with the
loss of the arm, had it not been for
complications due to make mistakes
committed by the doctor in the surgical
operation and treatment: Is the crime
homicide? It was so held by the Audiencia of
Jaen; but upon appeal taken by the accused,
the Supreme Court only found him guilty of
the crime of serious physical injuries :
"Whereas, although as this court has
repeatedly held, a person is liable for all
justiciable acts contrary to law and for all the
consequences thereof, having inflicted
physical injuries, from which or from whose
direct or immediate consequences death
results, either incidentally or accidentally, the
offender must answer for the ultimate result
of his act, i. e., for the death resulting from
the injury he inflicted, yet this principle is
not applicable where it clearly appears that
the injury would not have caused death, in
the ordinary course of events, but would have
healed in so many days, and where it is
shown beyond all doubt that the death is due
to the malicious or careless acts of the injured
person or a third person, because it is a more
and equitable principle universally recognized
and constantly applied, that one is
accountable for his own acts and their natural
or logical consequences, and not for those
which bear no relation to the initial cause and
are due to the carelessness, fault, or lack of
skill of another, whether it be the injured man
himself or a third person: Whereas, the
proper jury having been found, upon the
strength of the evidence before it, that the
wounds inflicted by the appellant Jeronimo
Navarro upon Bartolome Martinez would
have healed, with the loss of an arm, had it
not been for certain complications due to the
mistakes committed by the doctor in the
surgical operations and treatment thereof, it is
obvious that following the doctrine set forth in
the foregoing reasonings, the appellant
should not have been convicted of the crime
of homicide, but merely of serious physical
injuries with the loss of a principal member,
this being the only consequence imputable to
him in view of his act, inasmuch as the death

was due wholly to another person's


carelessness or lack of skill, etc." (Decision of
April 2, 1903, Gazette of May 23rd.) 5 Viada,
5th edition, page 81.)
In the first two cases cited, it will be observed
that the deceased received less serious
physical injuries and that death was due to
their own carelessness or abuses committed
by them. In the third case, the deceased had
been seriously injured, but died as a result of
the mistakes of the doctor in the surgical
operation and treatment of the injuries. The
Supreme Court of Spain held them criminally
liable for the crime of less serious physical
injuries in the first two, and of serious
physical injuries in the third, because these,
and not homicide were the natural
consequences of their unlawful acts,
inasmuch as death was the result of
carelessness and abuses committed by the
injured persons themselves, and of the
mistakes of the doctor in the surgical
operation and treatment of the wounds.
In United States vs. Embate (3 Phil., 640),
where the real cause of death could not be
determined, this court, through Chief Justice
Arellano, held:
All the witnesses attribute the death of the
child to the illness it was suffering, but the
doctor, who did nothing more than to examine
the body and gives his certificate as to certain
bruises on the thighs, in his testimony states
that the body showed unequivocal signs of a
serious disease of the heart, and that the
bruises could not have caused the death of
the child, but might have contributed to
accelerate the fatal result of that illness,
which was a serious affection of the heart.
Being asked by the judge whether the gravity
of the child's illness, owing to the affection of
the heart, was such that it might have died
without the blows which were inflicted upon
him, the witness replied that "if in the first
place the age of the child is taken into
consideration, and in the second its
surrounding circumstances, its condition was
such as to lead one to expect a fatal result,
no physician being in attendance."
Upon being further questioned as to whether
he believed that the blows inflicted upon the
child and which produced the bruises were
the cause of its death, he replied that "as no
other approximate cause is known than the
great excitement produced by those blows, it
may be inferred that they were the sole cause
which precipitated the fatal result of the
illness of the child."
We do not find in this testimony, given solely
upon the result of the examination of the
body, sufficient evidence as to the true cause
of the death of the child. But it is true that the

accused did strike him for the purpose of


inflicting punishment, and as by this he
committed a misdemeanor which should not
go unpunished, and which can be punished in
this same cause under the provisions of
section 29 of General Orders, No. 58, . . .
For all the foregoing, I am of the opinion that
the defendant- appellant can only be made to
answer for the misdemeanor of slight physical
injuries as defined and penalized in article
587 of the Penal Code, inasmuch as the
wound inflicted by her might have been
healed in seven days, the penalty fixed being
arresto menor.
Malcolm and Romualdez, JJ., concur.
March 22, 1921
G.R. No. 16486
THE UNITED STATES, plaintiff-appelle,
vs.
CALIXTO VALDEZ Y QUIRI, defendantappellant.
STREET, J.:
The rather singular circumstances attending
the commission of the offense of homicide
which is under discussion in the present
appeal are these:
At about noon, on November 29, 1919, while
the interisland steamer Vigan was anchored
in the Pasig River a short distance from the
lighthouse and not far from where the river
debouches into the Manila Bay, a small boat
was sent out to raise the anchor. The crew of
this boat consisted of the accused, Calixto
Valdez y Quiri, and six others among whom
was the deceased, Venancio Gargantel. The
accused was in charge of the men and stood
at the stern of the boat, acting as helmsman,
while Venancio Gargantel was at the bow.
The work raising the anchor seems to have
proceeded too slowly to satisfy the accused,
and he accordingly began to abuse the men
with offensive epithets. Upon this Venancio
Gargantel remonstrated, saying that it would
be better, and they would work better, if he
would not insult them. The accused took this
remonstrance as a display of insubordination;
and rising in rage he moved towards
Venancio, with a big knife in hand,
threatening to stab him. At the instant when
the accused had attained to within a few feet
of Venancio, the latter, evidently believing
himself in great and immediate peril, threw
himself into the water and disappeared
beneath its surface to be seen no more.
The boat in which this incident took place was
at the time possibly 30 or 40 yards from shore
and was distant, say, 10 paces from the
Vigan. Two scows were moored to the shore,
but between these and the boat intervened a

space which may be estimated at 18 or 20


yards. At it was full midday, and there was
nothing to obstruct the view of persons upon
the scene, the failure of Venancio Gargantel
to rise to the surface conclusively shows that,
owing to his possible inability to swim or the
strength of the current, he was borne down
into the water and was drowned.
Two witnesses who were on the boat state
that, immediately after Venancio leaped into
the water, the accused told the remaining
members of the crew to keep quiet or he
would kill them. For this reason they made no
movement looking to rescue; but inasmuch
as there witnesses are sure that Venancio did
not again come to the surface, efforts at
rescue would have been fruitless. The fact
that the accused at his juncture threatened
the crew with violence is, therefore, of no
moment except tho show the temporary
excitement under which he was laboring.
On the next day one of the friends of
Venancio Gargantel posted himself near the
lighthouse to watch for the body, in the hope
that it might come to the surface and could
thus be recovered. Though his friendly vigil
lasted three days nothing came of it.
It may be added that Venancio has not
returned to his lodging in Manila, where he
lived as a bachelor in the house of an
acquaintance; and his personal belongings
have been delivered to a representative of his
mother who lives in the Province of Iloilo. His
friends and relatives, it is needless to say,
take it for granted that he is dead.
The circumstances narrated above are such
in our opinion as to exclude all reasonable
possibility that Venancio Gargantel may have
survived; and we think that the trial judge did
not err in holding that he is dead and that he
came to his death by drowning under the
circumstances stated. The proof is direct that
he never rose to the surface after jumping
into the river, so far as the observers could
see; and this circumstance, coupled with the
known fact that human life must inevitably be
extinguished by asphyxiation under water, is
conclusive of his death. The possibility that
he might have swum ashore, after rising in a
spot hidden from the view of his companions,
we consider too remote to be entertained for
a moment.
As to the criminal responsibility of the
accused for the death thus occasioned the
likewise can be no doubt; for it is obvious that
the deceased, in throwing himself in the river,
acted solely in obedience to the instinct of
self-preservation and was in no sense legally
responsible for his own death. As to him it
was but the exercise of a choice between two
evils, and any reasonable person under the

same circumstances might have done the


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

no intention to commit so great a wrong as


that committed. (Par. 3, art. 9 Penal Code.) In
accordance with this finding the judge
sentenced the accused to undergo
imprisonment for twelve years and one day,
reclusion temporal, to suffer the
corresponding accessories, to indemnify the
family of the deceased in the sum of P500,
and to pay the costs. Said sentenced is in
accordance with law; and it being understood
that the accessories appropriate to the case
are those specified in article 59 of the Penal
Code, the same is affirmed, with costs
against the appellant. So ordered.
Mapa, C.J., Malcolm, Avancea and Villamor,
JJ., concur.
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 steamer Vigan 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.
G.R. No. L-34665
August 28, 1931
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
DONATO BINDOY, defendant-appellant.
VILLAMOR, J.:
The appellant was sentenced by the Court of
First Instance of Occidental Misamis to the
penalty of twelve years and one day of
reclusion temporal, with the accessories of
law, to indemnify the heirs of the deceased in
the amount of P1,000, and to pay the costs.
The crime charged against the accused is

homicide, according to the following


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

The wound which Omamdam received in the


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

would have greatly facilitated the solution of


this case. And we deem it well to repeat what
this court said in United States vs. Carlos (15
Phil., 47), to wit:
The attention of prosecuting officers, and
especially of provincial fiscals, directed to the
importance of definitely ascertaining and
proving, when possible, the motives which
actuated the commission of a crime under
investigation.
In many criminal cases one of the most
important aids in completing the proof of the
commission of the crime by the accused is
the introduction of evidence disclosing the
motives which tempted the mind of the guilty
person to indulge the criminal act.
In view of the evidence before us, we are of
opinion and so hold, that the appellant is
entitled to acquittal according to article 8, No.
8, Penal Code. Wherefore, the judgment
appealed from is reversed, and the accused
Donato Bindoy is hereby acquitted with costs
de oficio. So ordered.
February 25, 1947
G.R. No. L-482
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
BIENVENIDO NOCUM, defendant-appellant.
BENGZON, J.:
For having discharged a gun and accidentally
killed Eugenio Francisco, the defendant
Bienvenido Nocum, alias Bembe, was tried in
the Court of First Instance Manila, before the
Honorable Alfonso Felix, judge. Found guilty
of homicide through reckless negligence, he
appealed in due course.
According to the evidence, about 9 o'clock in
the evening of November 21, 1945, there was
a fistic fight between Federico Bautista and
Vicente Aurencio at the corner of Mayhaligue
and Magdalena Streets, City of Manila.
Desiring to stop the encounter, defendant
shouted at the combatants. As these paid him
no attention, he drew a .45 caliber pistol and
shot twice at the air. The bout continued,
however; so he fired another shot at the
ground, but unfortunately the bullet
ricocheted and hit Eugenio Francisco, an
innocent by-stander, resident of the place.
The wounded man was promptly carried to
the St. Luke's Hospital where he expired
soon after.
The above paragraph is a composite and
abridged statement of the declarations of
several witnesses (Jesus Santos, Vicente
and Juan Aurencio and Ramon Gagui) in
connection with defendant's confession
Exhibit F.[[1]] But his attorney, assailing the

10

validity of said confession in the ground of


involuntariness, contends in this Court that in
asmuch as the corpus delicti had not been
demonstrated by evidence dehors that
document, his client should be absolved,
pursuant to several pertinent decisions.
(United States vs. De la Cruz, 2 Phil., 148;
and People vs. Bantagan, 54 Phil., 834.)
Particular attention has been given to these
points. Yet there is competent proof
establishing the fact that, during the affray,
pistol detonations were heard, and that one of
the bullets produced the tragic death of
Eugenio Francisco, whose photograph is
Exhibit B. That is proof of the corpus delicti, i.
e., proof of violent death, whether or not
feloniously caused. (See Moran, Law of
Evidence, Revised Edition, pp. 108, 109;
People vs. Mones, 58 Phil., 46.) The
confession Exhibit F served to identify the
person who fired those shots and committed
the offense.
We feel no inclination to reject such
confession, because the uncorroborated and
implausible testimony of the accused,
alleging he had been manhandled before
signing this document, about which he knew
nothing, could not definitely overcome the
positive assertions of Pablo Montilla of the
Manila Police Department (before whom
Exhibit F had been executed) that no force or
intimidation had been employed on Nocum,
who willingly signed it "after propounding to
him all the questions and explaining to him
the contents" thereof. The impartiality of that
officer of the law has not been shaken by the
lone testimony of herein appellant, which, as
explained in the People's brief, deserves no
credence. Nocum said in court that he signed
Exhibit F when Montilla told him "it was
simply a proof that they arrested me" (p. 27,
t.s.n.). This is inconsistent with the alleged
third-degree methods. If he was forced,
deceit was unneccessary. And yet, he could
not be deceived thusly, because he was no
illiterate, being seventh grader.
Anyway, the trial judge had the chance to see
the opposing witnesses, and to observe their
demeanor on the stand; and in the conflict of
their statements we will not interfere with his
judgment, unless the record discloses some
important circumstance which was
overlooked, (United States vs. Remigio, 37
Phil., 599; United States vs. Maralit, 36 Phil.,
155), it being the peculiar province of trial
courts to resolve questions relating to the
credibility of witnesses. (United States vs.
Pico, 15 Phil., 549.)
The mishap should be classed as homicide
through reckless imprudence, the slaying
having been unintentional (cf. People vs.

Sara, 55 Phil., 939; and United States vs.


Reodique, 32 Phil., 458). It is apparent the
defendant wilfully discharged his gun for
which he exhibited no license, by the way
without taking the precautions demanded by
the circumstance that the district was
populated, and the likehood that his bullet
would glance over the hard pavement of the
Manila thoroughfare.
A landowner surprise a youngster in the act of
stealing some fruit in his orchard. To scare
the intruder he fired a shotgun aiming at the
foliage of a cherry tree. The shot scattered
and a pellet injured the boy, who was
standing under the tree. That was reckless
negligence, the Spanish Supreme Court
decided. (Sent. June 20, 1900, Viada, 5th
ed., Vol. 7, p. 14.)
The penalty imposed on the appellant is 2
months and 1 day to 1 year and 1 day,
indemnity of P2,000 with subsidiary
imprisonment, and costs. It is within the limits
authorized by law. (Article 365, Rev. Penal
Code, and Act No. 4103.) (Act No. 284.)
Wherefore, the appealed judgment is
affirmed, with costs against appellant.
Moran, C.J., Feria, Pablo, Hilado, Briones,
Hontiveros, Padilla and Tuason, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
Appellant is indicted for homicide committed
on November 21, 1945, which caused the
death of Eugenio Francisco. The lower court
sentenced him to from two months and one
day of arresto mayor to one year and one day
of prision correccional, to indemnify the heirs
of Eugenio Francisco in the sum of P2,000
and to suffer the corresponding subsidiary
imprisonment in case of insolvency, and to
pay the costs.
The lower court found appellant guilty of
homicide through reckless imprudence, upon
the prosecution's theory, stated in the
appealed decision as follows: "On November
21, 1945, at about 9 o'clock in the evening,
and at the corner of Mayhaligue and
Magdalena Streets in the District of Sta. Cruz
of this City of Manila, a quarrel developed
between Vicente Aurencio and Federico
Bautista in which other gangsters intervened.
On that occasion defendant Bienvenido
Nocum, one of the members of the gang,
desiring to stop the fight, shouted at the
combatants in vain; so he decided to
discharge his revolver twice in the air, but
seeing that even this recourse was not taken
heed of by his quarrelling friends, he fired
another shot to the ground which
unfortunately ricocheted and hit a passer-by
named Eugenio Francisco. The wounded

man was taken to the hospital where he


expired soon after his arrival therein."
These pronouncement of the lower court are
not supported by the evidence. They are
based on fantasy.
The prosecution called five witnesses to
testify and presented two exhibits as
evidence.
Pablo Montilla has no personal knowledge of
the incident, because he arrived at the place
about thirty minutes after the incident was
over. His testimony, notwithstanding, tends to
show alleged admissions of appellant during
the investigation and about the voluntariness
of appellant's written statement Exhibit F.
Jesus Santos, another police officer, has no
personal knowledge as to how the deceased
Eugenio Francisco was shot, because when
he arrived at the place he saw the deceased
being held and attended inside the store
where the witness was told that somebody
was shot. Ramon Gagui, testified that he
never had seen Bienvenido Nocum, although
he was present during the incident in which
Federico Bautista and Vicente Aurencio had
been fighting and he heard shots during the
fight. Vicente Aurencio and Juan Aurencio did
not testify anything against Nocum. They
have not seen him at the place of the
incident. They do not know him. The two
exhibits of the prosecution which were
admitted are Exhibit B, which is a photograph
of the deceased, and Exhibit F, which is the
written statement attributed to appellant.
Appellant, a laborer, 22 years of age, sixth
grade, testified that he had never seen the
deceased and denied having been at the
place of the incident on November 21, 1945,
because at that time he was in the province
where he had been since September. When
he signed Exhibit F, he was not asked by
Pablo Montilla questions regarding the killing
of Eugenio Francisco. Appellant did not see
Exhibit F being typewritten. He denied having
been asked by Montilla the questions
appearing in the statement and having given
the answer attributed to him. He never
possessed any revolver, be it .45 caliber or
any other caliber. Exhibit F was not read or
translated in Tagalog to the appellant, who
was told to sign it simply as a proof that he
was arrested. Appellant was not given the
opportunity to read the document. "This
statement was rolled in such a way that I
could not see the contents; and before I was
asked to sign it the policeman hurt me,"
pointing to Pablo Montilla as the one who hurt
him. Explaining why he appeared in court
wearing torn dress, appellant said: "Because
when he boxed me in the stomach I turned
towards the right, and he held me by the right

arm." The witness was wearing the same suit


when he was compelled to sign Exhibit F.
"Afterwards two of his companions arrived,
bringing pieces of wet cloth. They tied them in
my neck and, after tying them, they folded
their sides and I did not know what happened
to me afterwards," that is, the witness
became unconscious "and I fell to the
ground." Only after the lapse of some time,
when appellant recovered consciousness,
when he was to sign Exhibit F. Exhibit F
appears to have been signed on March 12,
1946, nearly four months after the shooting of
Eugenio Francisco, and about one month
after appellant had been arrested on
February 14, 1946.
Appellant's testimony as to the torture he
underwent before he was made to sign
Exhibit F has never been rebutted by the
prosecution. Although police officer Pablo
Montilla was present in the court room at the
time appellant testified as to his torture, so
much so as he pointed to Montilla as one of
the three police officers who boxed him and
tortured him with wet cloth, until the accused
lost consciousness and fell down, said
Montilla did not dare to contradict appellant's
testimony. The testimony remains
unchallenged and should be given its full
value.
We are not willing to lend our support to a
sentence convicting a man of a crime and
sending him to prison upon the involuntary
evidence of an alleged confession extracted
from him by torture. It would simply be
iniquitous. All words of condemnation against
the third degree methods are not enough to
paint in all its ugliness the practice compelling
a person to sign an involuntary confession
through physical sufferings. We should
eradicate completely, once and for all, all
traces which symbolize the kempei methods
at Fort Bonifacio, zoning camps, and other
torture chambers operated by the sadistic
Nippon regime.
The second paragraph of the majority
opinion, wherein it appears that appellant
fired a bullet which ricocheted and hit
Eugenio Francisco, is represented by the
majority as a composite and abridged
statement of the declarations of witnesses
Jesus Santos, Vicente Aurencio, Juan
Aurencio, and Ramon Gagui. We regret to
disagree. There is absolutely nothing in the
declaration of the said persons to show that
appellant was present in the place where the
incident took place, much less that he fired
any shot at all. It seems to us beyond all
understanding how the majority were able to
read in the declarations of said witnesses
what no one will be able to find therein. No

11

one should be convicted on what can be


imagined appearing in the testimonies of
witnesses but which, as a matter of fact, does
not appear in them. An accused must be
convicted on the strength of actual evidence;
never on the hazy creatures of our
imaginations. We have read and re-read the
declarations of the four witnesses mentioned
in the majority decision, but we were unable
to find any support to the majority position.
No one even mentioned the name of
appellant Nocum and, as to Vicente Aurencio,
Juan Aurencio and Ramon Gagui,
notwithstanding the leading questions
propounded by the fiscal they stated
categorically that they had not seen
Bienvenido Nocum and that they do not even
know him.
Vicente Aurencio testified:
"Q. El acusado Bienvenido Nocum estaba alli
en aquella ocasion? A. No setaba alli; no
le conozo. Con mayor razon no estaba. No le
conozco a ese."
Juan Aurencio testified equally that "no
recuerdo que este acusado Nocum fuera
companero de ellos." Asked if he knows
Bienvenido Nocum, he answered, "No seor."
Asked if he saw him on the occasion of the
incident he answered, "No senor."
Concerning the shots fired he said: "Yo oi una
detonacion pero no se quien disparo."
In the whole testimony of Jesus Santos there
is absolutely no mention of Nocum.
As to the alleged confession Exhibit F of
appellant, because appellant testified that he
was told "that it was simply a proof that they
arrested me," the majority would not believe
that appellant's signature in the document
was obtained by third degree methods, upon
the novel theory of inconsistency of deceit
and force or torture as means to extract
involuntary confessions or admissions. Such
naive proposition shows lack of sense of
reality. There is absolutely no incompatibility
in the use of deceit and torture to secure
involuntary admissions or confessions. As a
matter of fact they are complementary, and in
many cases they have been simultaneously
used.
The majority do not accept that appellant
could have been deceived, "because he was
no illiterate, being a seventh grader." In the
first place, literacy has never been an
absolute guarantee against deceit. There is
no kind, grade or measure of culture which
can be considered absolutely deceit-proof.
We vote to reverse the appealed decision
and for the acquittal of appellant.
Paras, J., concurs.
Footnotes

Nocum said: "In my efforts to pacify them I


shouted at them to quit fighting but they did
not give heed. I then took hold of my .45
caliber pistol and fired two shots into the air,
but still they continued fighting. I then fired
another more shot into the ground, without
any intention of hitting anybody, but
accidentally it hit Eugenio Francisco who was
standing on the other side of the street."
(Exhibit F.)
February 16, 1950
G.R. No. L-1896
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
RAFAEL BALMORES Y CAYA, defendantappellant.
OZAETA, J.:
Appellant, waiving the right to be assisted by
counsel, pleaded guilty to the following
information filed against him in the Court of
First Instance of Manila:
The undersigned accuses Rafael Balmores y
Caya of attempted estafa through falsification
of a security, committed as follows:
That on or about the 22nd day of September,
1947, in the City of Manila, Philippines, the
said accused did then and there wilfully,
unlawfully and feloniously commence the
commission of the crime of estafa through
falsification of a security directly by overt acts,
to wit; by then and there tearing off at the
bottom in a cross-wise direction a portion of a
genuine 1/8 unit Philippine Charity
Sweepstakes ticket thereby removing the true
and real unidentified number of same and
substituting and writing in ink at the bottom on
the left side of said ticket the figure or number
074000 thus making the said ticket bear the
said number 074000, which is a prize-winning
number in the Philippine Charity
Sweepstakes draw last June 29, 1947, and
presenting the said ticket so falsified on said
date, September 22, 1947, in the Philippine
Charity Sweepstakes Office for the purpose
of exchanging the same for the
corresponding cash that said number has
won, fraudulently pretending in said office
that the said 1/8 unit of a Philippine Charity
Sweepstakes ticket is genuine and that he is
entitled to the corresponding amount of
P359.55 so won by said ticket in the
Philippine Charity Sweepstakes draw on said
date, June 29, 1947, but the said accused
failed to perform all the acts of execution
which would have produce the crime of estafa
through falsification of a security as a
consequence by reason of some causes
other than this spontaneous desistance, to

wit: one Bayani Miller, an employee to whom


the said accused presented said ticket in the
Philippine Charity Sweepstakes Office
discovered that the said ticket as presented
by the said accused was falsified and
immediately thereafter he called for a
policeman who apprehended and arrested
the said accused right then and there.
Contrary to law.
(Sgd.) LORENZO RELOVA
Assistant City Fiscal
and was sentenced by Judge Emilio Pena to
suffer not less than 10 years and 1 day of
prision mayor and not more than 12 years
and 1 day of reclusion temporal, and to pay a
fine of P100 and the costs.
From that sentence he appealed to this court,
contending (1) that the facts and (2) that the
trial court lacked jurisdiction to convict him on
a plea of guilty because, being illiterate, he
was not assisted by counsel.
In support of the first contention, counsel for
the appellant argues that there could be so
could be no genuine 1/8 unit Philippine
Charity Sweepstakes ticket for the June 29,
1947, draw; that this court has judicial notice
that the Philippine Charity Sweepstakes
Office issued only four 1/4 units for each
ticket for the said draw of June 29, 1947; that
the information does not show that the true
and real unidentified number of the ticket
alleged to have been torn was not and could
not be 074000; that the substitution and
writing in ink of the said number 074000 was
not falsification where the true and real
number of the ticket so torn was 074000.
This contention is based on assumption not
borne out by the record. The ticket alleged to
have been falsified is before us and it
appears to be a 1/8 unit. We cannot take
judicial notice of what is not of common
knowledge. If relevant, should have been
proved. But if it is true that the Philippine
Charity Sweepstakes Office did not issue 1/8
but only 1/4 units of tickets for the June 29,
1947, draw, that would only strengthen the
theory of the prosecution that the 1/8 unit of a
ticket which appellant presented to the
Philippine Charity Sweepstakes Office was
spurious. The assumption that the true and
real unidentified number of the ticket alleged
to have been torn was the winning number
074000, is likewise not supported by the
record. The information to which appellant
pleaded guilty alleged that the appellant
removed the true and real unidentified
number of the ticket and substituted and
wrote in ink at the bottom on the left side of
said ticket the figure or number 074000. It is
obvious that there would have been no need

of removal and substitution if the original


number on the ticket was the same as that
which appellant wrote in ink in lieu thereof.
The second contention appears to be based
on a correct premises but wrong conclusion.
The fact that appellant was illiterate did not
deprive the trial court of jurisdiction assisted
by counsel. The decision expressly states
that appellant waived the right to be assisted
by counsel, and we know of no law against
such waiver.
It may be that appellant was either reckless
or foolish in believing that a falsification as
patent as that which he admitted to have
perpetrated would succeed; but the
recklessness and clumsiness of the
falsification did not make the crime
impossible within the purview of paragraph 2,
article 4, in relation to article 59, of the
Revised Penal Code. Examples of an
impossible crime, which formerly was not
punishable but is now under article 59 of the
Revised Penal Code, are the following: (1)
When one tries to kill another by putting in his
soup a substance which he believes to be
arsenic when in fact it is common salt; and (2)
when one tries to murder a corpse. (Guevara,
Commentaries on the Revised Penal Code,
4th ed., page 15; decision, Supreme Court of
Spain, November 26, 1879; 12 Jur. Crim.,
343.) Judging from the appearance of the
falsified ticket in question, we are not
prepared to say that it would have been
impossible for the appellant to consummate
the crime of estafa thru falsification of said
ticket if the clerk to whom it was presented for
the payment had not exercised due care.
The penalty imposed by article 166 for the
forging or falsification of "treasury or bank
notes or certificates or other obligations and
securities" is reclusion temporal in its
minimum period and a fine not to exceed
P10,000, if the document which has been
falsified, counterfeited, or altered is an
obligation or security of the United States or
of the Philippine Islands. This being a
complex crime of attempted estafa through
falsification of an obligation or security of the
Philippines, the penalty should be imposed in
its maximum period in accordance with article
48. Taking into consideration the mitigating
circumstance of lack of instruction, and
applying the Indeterminate Sentence Law,
the minimum cannot be lower than prision
mayor in its maximum period, which is 10
years and 1 day to 12 years. It results,
therefore, that the penalty imposed by the
trial court is correct.
The alteration, or even destruction, of a losing
sweepstakes ticket could cause no harm to
anyone and would not constitute a crime

12

were it not for the attempt to cash the ticket


so altered as a prize-winning number. So in
the ultimate analysis appellant's real offense
was the attempt to commit estafa (punishable
with eleven days of arresto menor); but
technically and legally he has to suffer for the
serious crime of falsification of a government
obligation. We realize that the penalty is too
severe, considering all the circumstances of
the case, but we have no discretion to impose
a lower penalty than authorized by law. The
exercise of clemency and not in this court.
We are constrained to affirm the sentence
appealed from, with costs against the
appellant.
Moran, C.J., Pablo, Bengzon, Padilla,
Tuason, Montemayor, Reyes and Torres, JJ.,
concur.
Separate Opinions
PARAS, J., dissenting:
The accused-appellant, instead of being the
victimizer, had become the victim. He was
accused of having falsified a genuine 1/8 unit
of the Philippine Charity Sweepstakes ticket
for the June, 1947, draw by tearing off at its
bottom in a cross-wise direction a portion,
thereby removing the true and unidentified
number of said ticket and substituting and
writing in ink at the bottom on the left side the
number 074000, thus making said ticket bear
a prize-winning number. He was convicted of
attempted estafa thru falsification of an
obligation or security and sentenced to an
indeterminate penalty of from 10 years and 1
day of prision mayor 12 years and 1 day of
reclusion temporal, and to pay a fine of P100
plus the costs. He waived the right to be
assisted by counsel and merely pleaded
guilty to the information.
The appellant is admittedly an illiterate and, in
my opinion, had committed only an
impossible crime now punishable under
paragraph 2, article 4, in relation to article 59,
of the Revised Penal Code. I say impossible,
because in the way the alleged falsification
was done, it was inherently inadequate or
ineffective and according certain to be
detected. Stated otherwise, the appellant
could not have succeeded in cashing the
ticket. Flor who would cash a ticket which, in
the first place, has a missing portion and, in
the second place, contains a number written
in ink. Not even boy agents who conduct their
trades on street sidewalks, and much less the
employee of the Sweepstakes Office to whom
it was presented. As a matter of fact, the
falsification was readily detected by said
employee. The crime is just as impossible as
passing a counterfeit paper bill concocted in
regular newsprint and in ordinary handwriting.

A doubt also arises from the fact that the


ticket is a 1/8 unit, in the face of the
contention of attorney for appellant in this
instance that the tickets for the June, 1947,
Sweepstakes draw consisted of only four
units. Of course, this may not be a matter of
judicial notice, but the point remains that if
appellant was assisted by competent counsel
in the trial court, the fact might have been
duly proven. It is true that the appellant
waived his right to be assisted by counsel,
but we cannot help pointing out that a
miscarriage of justice may sometime result by
force of circumstances. In such cases, any
capital doubt should be resolved in favor of
the accused.
My vote, therefore, is to reverse the appealed
judgment and to release the appellant
immediately as he has been in prison since
November 11, 1947.
August 31, 1981
G.R. No. L-52797
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
ANGELO UMAGUING, defendant whose
death Sentence is under review.
AQUINO, J.:
There is no controversy as to the facts of this
extraordinary case where the accused
attempted to hasten the death of a
septuagenarian woman who had suffered a
stroke.
In the evening of January 8, 1977, Amparo
Lazo y Villaflor, 76, a resident of 45-B llth
Avenue, Cubao, Quezon City (a native of Sto.
Domingo, Ilocos Sur), had a severe
headache and a bout of vomiting, followed by
cerebral hemorrhage. She fell into a coma.
She was rushed by her relatives and two
boarders to the Polymedic General Hospital,
located at E. de los Santos Avenue,
Mandaluyong, Metro Manila and administered
by Doctor Victor Potenciano. She arrived in
the emergency room at seven-forty five. She
was on a stretcher.
She was unconscious due to cerebrovascular congestion. She had difficulty in
breathing, Her blood pressure was 200/100.
Her pulse rate was 100 per minute (Exh. B1).
The nurse on duty administered oxygen
inhalation to the patient. She was given
dextrose, penicillin, solu-cortef serpasil
decadron and sodium bicarbonate, A vein of
the patient was cut to diminish the blood
pressure,
As the patient had apnea Doctor Emmanuel
Favila called the other resident physicians for

a consultation. At about eight-thirty, Doctor


Estacio, an anesthesiologist, inserted into the
patients mouth and windpipe an endotracheal
rubber tube, about six inches long and half an
inch in diameter with a plastic ventilator. It
was taped to the patient's mouth by means of
a plaster. The purpose was for "ventilation" or
the excretion of the carbon dioxide (to
prevent "drowning", according to Doctor
Favila).
After the endotracheal tube had been
inserted, Angelo Umaguing, a janitor, for
reasons known only to himself and without
the least justification, tried to remove the
plaster holding the tube in place. Doctor
Estacio shooed him away. That episode was
witnessed by Doctor Favila (81-82 tsn March
9,1977).
Then, a few minutes later, after the doctors
had left the emergency room and while the
nurse's back was turned, Umaguing went to
the patient's bed and, to suit his purpose (for
being a mere janitor he had nothing to do with
the patient), he removed the endotracheal
tube. His reckless and irrational act was
witnessed by Jojo Cruz and Adelaida Apostol,
the patient's grandson and niece,
respectively.
According to Adelaida, the removal of the
tube caused the patient to bleed in the mouth
and to have a convulsion
(nangisay)Umaguing even closed the
patient's eyes, (6-7 tsn November 11, 1977).
The nurse called the doctors to the
emergency room. Doctor Ramon Sison, the
chief resident physician, restored the
endotracheal tube. The patient -was still
breathing. The security guard was alerted
and directed to detain Umaguing. A relative of
the patient called a policeman. Umaguing
was arrested and brought to the police station
of Mandaluyong where the incident was
investigated.
The removal of the tube impelled the patient's
relatives to transfer her to the Cardinal
Santos Hospital. She was brought there in an
ambulance. She died there the next day at
four-quarter in the morning. Death was due
to. cardiorespiratory arrest brought about by
cerebro-vascular hemorrhage and
hypertension (Exh. A).
The Mandaluyong police secured the
statement of Jojo Cruz, Gloria Apostol,
Adelaida Apostol and the nurse who pointed
to Umaguing (he was present when the
statements were taken) as the culprit who
removed the endotracheal tube.
Jose Cruz, the sixteen-year-old grandson of
the patient, in his statement taken in
Umaguing s presence, said:

. . .ng nasa emergency room kami ay ginamot


siya (the patient) ng doktor ay nanduruon siya
(Angelo Umaguing, the accused) ay inalis
niya ang plaster ng gomang inalagay ng
doktor sa bibig ng aking lola, ay pinalis ng
doktor ang kanyang kamay at sinabi sa kanya
na : Bakit mo pinakikialam iyo? at umalis na
siya( Angelo Umaguing).
Pumunta kami ng tiyahing kong si Gloria
Apostol, sa information para iconfine ang
aking Lola. Ako po ay bumalik sa emergency
room. Nakita ko ang aking tiyang si Adelaida
na nakaupo at minasahe ang kamay ng aking
lola.
Mga ilang sandalin po ay biglang lumapit siya
(Angelo Umaguing) ulit at tinanggal ang
plaster na nakakabit sa gomang nakalagay
sa bibig ng aking Lola at hinugot iyon.
Mabuti at may lumabas na nurse at tinanong
kami: 'Sino ang nag-alis niyan?' Ang taong
iyan (Angelo Umaguing) ay pilit na ipinipikit
ang (mga) mata ng aking Lola at tinanong si
Angelo na kung bakit siya nakikialam.
At lumabas itong si Angelo patungo sa
corridor at siya ay hinabol ng nurse at narinig
ko na huwag papaalisin ang taong iyan. (Exh.
F, p. 62, Record).
Adelaida Apostol, a niece of the patient who
was also in the emergency room, in her
statement gave the following account of what
Umaguing did:
Ng aming pong dalahin ang aking tiyang si
Amparo Lazo sa Polymedic Hospital ay
ipinasok siya sa emergency room. Agad
namang inasikaso ng mga doktor at ng nurse
ang aking tiyahin. Kami nuon ng aking
pamangking si Jojo (Jose Cruz) at ang
dalawang boarders ng aking tiya ay nasa
paligid din ng emergency room.
Nakita ko na may nagmamasahe sa tiyan ng
aking tiya, May nagbobomba sa bibig niya at
may nagsaksak ng iniksyon sa kamay. Ng
may inilalagay na ang isang doktor sa bibig
ng aking tiya na parang tubo ay nakita ko ang
taong iyan (Angelo Umaguing) na inalis ang
plaster (adhesive tape) at pinalis pa ang
kamay niya (Angelo Umaguing) ng doktor at
pinaalis
Ng ang aking hipag na si Gloria ay lumabas
upang ipaconfine na ang aking tiyahin at
matapos na ang paglalagay ng tubo sa bibig
ng aking tiya. Hindi nagtagal ay umalis na rin
ang doktor at ang natira ay ang orderly na
isang lalaki, ay pumasok ang lalaking iyan
(pointing again to Angelo Umaguing) at
biglang inalis ang nasabing tubo sa bibig ng
aking tiya, at nakita ko na parang hinabol ng
Tiya Amparing ko ang kanyang hininga at ang
orderly ay nagsalita ng 'Bakit mo inalis iyan at
inutusan ang isang guwardiya yata na pigilin

13

ang taong iyan (Angelo Umaguing) ng siya ay


palabas na" (Exh. H, p. 64, Record).
These statements are reflected in the initial
police investigation report of the incident,
excerpts from which are quoted below:
During the process when the endotracheal
tube was being installed/inserted, the
suspect, Angelo Umaguing, took off the
adhesive tape that strengthened the said tube
and the doctor attending to it, seeing the
hands of the suspect, warded them and was
sent off (shooed away) by him (the first
attempt).
After the installation of the endotracheal tube
and the doctor was out, the suspect returned
and in the clear view of the witnesses, Jose
Cruz, Gloria Apostol and the other relatives of
the victim, took out the said tube from the
mouth of the victim Amparo Lazo y Villaflor,
causing a disruption of her breath. (Exh. D, p.
151, Record).
Nurse Tessie Piad gave the following account
of Umaguing's wrongful act:
Suddenly, Mr. Makinano (the orderly) shouted
and said that the endotracheal tube was
removed by Mr. Umaguing (the janitor).
According to one of the relatives (of the
patient) (the one watching the patient) that
Mr. Umaguing (the janitor) open(ed) the
curtain and suddenly took the endotracheal
tube without any word.
So, I went immediately to the patient and
looked at her. The patient was still breathing
same as before and did not look like she was
in distress, I take (took) the vital signs; then
called for the doctor. Dr. Enrile, Dr. Sison and
Dr. Favila went down immediately. Dr. Sison
did the reinsertion of the endotracheal tube.
The relatives requested to transfer the patient
to the Cardinal Santos Memorial Hospital.
Our ambulance took the patient there,
accompanied by Dr. Enrile and Miss Abuan
and some relatives of the patient. The patient
was still in the same condition when she left
the hospital (Polymedic General Hospital). "
(Exh. C, p. 149, Record).
On January 12, 1977, the chief investigator of
the Mandaluyong police filed in the municipal
court a complaint for murder against
Umaguing. He waived the second stage of
the preliminary investigation. On January 20,
1977, the fiscal filed an information for
murder against Umaguing in the Circuit
Criminal Court at Pasig, Rizal.
After trial, the court convicted Umaguing of
consummated murder, qualified by treachery
and aggravated by abuse of superiority,
nocturnity, disregard of old age and ignominy,
sentenced him to death and ordered him to
pay an indemnity of twenty-two thousand
pesos to the heirs of Amparo Lazo (Criminal

Case No. 1858). The case was elevated to


this Court for review of the death penalty.
Umaguing, 29, who finished third year high
school, testified that in 1976 he started
working as janitor in the hospital. He became
a member of the Bahala na Gang in 1967.
His defense was that at past nine o'clock he
was categorically ordered by Doctor Sison to
remove alisin na") the endotracheal tube and
other instruments and devices because the
old woman's case was hopeless. The order
was allegedly given to him and to the nurse
and the orderly or attendant named Abundio
Makinano (3, 9-10 tsn January 5,1978).
In the courtroom Umaguing demonstrated the
giving of the signal by sitting on the floor, his
left elbow on top of the witness stand and his
right hand making a sign that there was no
more hope for the patient (9 tsn January 5,
1978).
Immediately after Umaguing mentioned the
name of Sison, Judge Onofre A. Villaluz
ordered that he be subpoenaed to testify. In
his testimony, Sison denied that he gave a
signal to Umaguing to remove the
endotracheal tube.
Umaguing denied that he was connected with
any funeral parlor. Doctor Sison did not know
whether Umaguing was an agent of any
mortician.
Umaguing admitted that after removing the
endotracheal tube he was called by the head
nurse. He was running because he was
nervous. He was nervous because he had
pulled out the tube. He admitted that
removing the tube was a mistake. He was
apprehended by the security guard at the
gate. He did not tell the police during the
investigation that Doctor Sison ordered him to
remove the tube (11 12 tsn).
Umaguing's counsel in the trial court admitted
that "there is no dispute that" Umaguing
"removed the endotracheal tube" (p. 164,
Record). In the police station, when two
relatives of the patient, Jose Cruz and
Adelaida Apostol, fingered him as the
malefactor who removed the endotracheal
tube, he did not controvert that accusation.
He did not execute any sworn statement to
prove his innocence.
Umaguing's counsel de oficio contends that
the trial court erred in finding that the removal
of the endotracheal tube shortened the old
woman's life or caused her death and in
holding that he committed murder.
He argues that because of the old woman's
critical condition she was sure to die a natural
death; that the tube was inserted into her
windpipe merely to lessen her suffering and
that she did not die immediately after the
removal of that tube.

It is also contended that the accused


accidentally removed the tube while he was
cleaning the emergency room and, therefore,
he did not deliberately intend to kill the old
woman. Hence, he could not be guilty of
murder.
Those contentions are devoid of merit. As a
janitor, the accused had no compelling
reason to be in the emergency room to watch
the old woman's condition while medical
assistance was being extended to her.
His presence in the emergency room was for
some ulterior motive and that motive became
evident when he removed the tube. The
removal of the tube was not accidental.
Evidently counsel de oficio did not remember
the testimony of Umaguing which counsel
himself elicited on direct examination, of
counsel did not bother to read the record.
Since Umaguing testified that he removed the
tube because he was ordered to do so by
Doctor Sison (3-4 tsn January -01 1978), the
removal of the tube was not accidental.
Umaguing was not cleaning the emergency
room when the old woman was brought there.
He had stationed himself in the emergency
room to monitor or to observed the medical
treatment being administered to her. his
diabolical purpose was to wait for a good
opportunity when he could attempt to hasten
the old woman demise.
On the other hand, The Solicitor General
recommends the acquital of the accused on
the ground that the proximate cause of the
patient's death aws not the removal of the
endotracheal tube but cardio-respiratory
arrest and that it was not shown that the
accused acted with criminal intent.
That recommendation is not well taken.
Umaguing's removal of the endotracheal tube
was utterly malicious and felenious. The
victims relative, he was trying to kill the old
woman. And so, they lost no time in calling a
policeman to apprehend and investigate him.
Umaguing, as a janitor, had nothing to do with
the patient. He had no business being in the
emergency room at eight o'clock in the
evening. As his act of removing the tube was
wrongful, it is to be presumed that he did so
with an evil intent (See 5[b], Rule 131, Rules
of Court; U.S. vs. Apostol, 14 Phil. 92; U.S.
vs. Tria, 17 Phil. 303; U.S. vs. Ballesteros, 25
Phil. 634; People vs. Sia Teb Ban, 54 Phil.
52; People vs. Cubelo 106 Phil. 496).
Umaguing was not able to rebut satisfactorily
that presumption. As already noted, his
testimony that he was ordered by Doctor
Sison, the chief resident physician, to remove
the tube was denied by the latter (22 tsn
January 5, 1978). Doctor Favila testified that

the removal of the tube was a serious matter


(65 tsn March 9, 1977).
The overt acts committed by the accused
constitute attempted murder. He was not able
to perform all the acts of execution necessary
to consummate the crime because the victim
was transferred to another hospital and the
accused was immediately apprehended.
Moreover, the tube was reinserted into the
victim's mouth.
We find the accused guilty beyond
reasonable doubt of attempted murder
without any aggravating circumstances.
The trial court's decision is modified. The
death penalty is set aside. Umaguing is
sentenced to an indeterminate penalty of four
years of prision correccional as minimum to
eight years of prision mayor as maximum and
to pay an indemnity of five thousand pesos to
the heirs of the victim, Amparo Lazo. Costs
de oficio.
SO ORDERED.
G.R. No. L-29481
October 31, 1928
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
PAMBAYA BAYAMBAO, defendantappellant.
ROMUALDEZ, J.:
Pambaya Bayambao was charged with the
crime of murder, was found guilty thereof by
the Court of First Instance of Lanao and
sentenced to twenty years' cadena temporal,
the accessories of law, costs and to indemnify
the heirs of the deceased in the sum of
P1,000.
He does not deny having caused the
deceased's death. He alleges, however, that
he did it by mistake, believing the deceased
malefactor who attacked him in the dark. He
thus related the occurence:
A. While my wife was cooking she called out
to me saying, "Pambaya, Pambaya, someone
has thrown a stone at the house." So I took
my revolver and went down. Having gone
under the house, I looked around, but did not
see anybody; however, I did not go far
because I was alone. Then, while I was near
the staircase, about to ascend, I heard a
noise and saw a black figure that rushed at
me, with hands lifted up as if to strike me, and
becoming frightened, I fired at it. 1awph!l.net
Q. Why did you shoot him? A. Because I
thought he was an outlaw and he also
thought that I was another outlaw, but found
out later that it was my brother-in-law.
Q. Why did you not shout before shooting?
A. I had no time because the man was
already near, when I saw that black figure
with uplifted arms behind a pillar, and fearing

14

he would attack me with his kampilan or


dagger, I shot him before he would kill me.
Q. Why did you think that black figure was an
outlaw? A. Because my wife screamed
that there were evildoers below, and in our
place ther are many outlaws, and those
outlaws hate me because I help the
Government to collect taxes. Some days
before, there was killing near my house, a
soldier killing two outlaws.
Q. After you had fired at that black figure,
what did you do? A. After having fired, I
waited a moment to see if he had other
outlaw companions, and I was prepared to go
up and get my gun. As I did not see anybody
else, I cried out, "Brother-in-law, come down,
Imo, bring a light." At that Imo and Morid
came down with a light and we discovered
that the person who was moaning was my
brother- in-law. Upon seeing him I ran
towards him, embracing and kissing him,
saying: "Forgive me, I thought you were an
outlaw," and he answered: "And I also
thought you were an outlaw." (Pages 33-34,
t.s.n.)
The wife of the victim gives another version of
the occurrence. She testified that when the
accused's wife informed him that someone
had thrown a stone at the house, the accused
suggested that the deceased go down and
see who was throwing stones at them; that
the deceased went down and told the
accused that there was no one under the
house; that thereupon the accused, telling
him to wait there for he was going to use his
flashlight, went down carrying an automatic
revolver in his right hand and a flashlight in
the left; that, on coming downstairs the
accused asked the deceased if the hens
there belonged to him, and the latter asked
the accused to focus his light there in order to
gather all the hens together; that at this the
accused shot the deceased, whose wife
peered out of the door and saw her husband
with the accused focusing his flashlight on
him and then firing at him again; that the
deceased told Pambaya that he was
wounded; that the deceased's wife upbraided
the accused telling him that he did wrong,
and asked why he had shot the deceased;
that the accused turned upon her telling her
to shut up or he would shoot her also.
Morid, widow of the deceased, is the only
witness testifying to these facts. Her
testimony is uncorroborated. The alleged
ante-mortem declaration contained in the
document Exhibit B, is of doubtful
authenticity, because, while the justice of the
peace and the witness Urunaga state that
such statement was made by the deceased,
Constabulary Lieutenant Cramer, who arrived

at where the deceased was a few moments


before said justice of the peace positively
states that the deceased could no longer
speak. Consequently, he could not very well
have the alleged statement. Of Course, it
appears that it was not the deceased who
wrote it, but Urunaga, and upon a typewriter.
It does not appear that the deceased read it
or that it was read to him, or that the
deceased acknowledge it as his own
statement. This proof of identity is
indispensible for the admissibility of such an
ante-mortem declaration as evidence.
(People vs. Dizon, 44 Phil., 267.) We cannot
give any probatory value to document Exhibit
B.
Alone and uncorroborated, therefore, stands
the testimony of Morid, which, besides being
incongruous in parts, is flatly and shoutly
denied by the accused and his wife.
Considering the circumstances of the case, it
is very improbable that, without a previous
dispute or even an exchange of words, the
accused should suddenly and unexpectedly
attack the deceased. The disagreement that,
according to the latter's widow, arose
between the accused and the deceased ten
days before the incident, has not been proven
in the record, and it is inconsistent with the
conduct of the two during the subsequent
days up to time of the incident, with both
living peacefully and sleeping together in the
same house on the night in question, a few
moments before the occurrence, according to
the testimony of Morid herself.
On the other hand, the accused's narration
seems natural. And as it is corroborated not
only by his wife's testimony, but on some
points by that of Lieutenant Cramer and
Sergeant Tumindog, to the effect that
immediately after the occurrence the accused
betook himself to the commanding officer of
the place in order to give an account of the
incident, and to ask for prompt medical help
for his unexpected victim, it cannot but
produce in the mind a conviction that what
happened to the unfortunate Mangutara was
an accident, without fault or guilt on the part
of the herein appellant.
The latter, on that occasion, acted from the
impulse of an uncontrollable fear of an ill at
least equal in gravity, in the belief that the
deceased was a malefactor who attacked him
with a kampilan or dagger in hand, and for
this reason, he was guilty of no crime and is
exempt from criminal liability (art. 8, No. 10,
Penal Code.)
Furthermore, his ignorance or error of fact
was not due to negligence or bad faith, and
this rebuts the presumption of malicious,
intent accompanying the act of killing. In an

case, this court acquitted the accused (U.S.


vs. Ah Chong, 15 Phil., 488), and we deem
the doctrine laid down in that case applicable
to this one.
The judgment appealed from is reversed and
the appellant acquitted, with costs de officio,
and the other pronouncements in his favor.
So ordered.
August 3, 1935
G.R. No. 43530
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendantappellant.
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 SolicitorGeneral, 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.
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

15

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.
Avancea, C.J., Abad Santos, Hull, and
Vickers, JJ., concur.
March 3, 1934
G.R. No. 40512
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
PERFECTO TAYAG and ATANASIO
MORALES, defendants-appellants.
DIAZ, J.:
The defendants and appellants Perfecto
Tayag and Atanasio Morales were convicted
of attempted robbery in an inhabited house,
located at No. 325-A San Marcelino Street,
Manila, having, on the night of September 12,
1933, attempted to enter the said house with
intent to rob, according to the allegations of
the information, by means of force and by
using a bolo and a screw driver to force one
of the doors thereof, which were then closed
and barred.

The court, which tried the case against the


said two appellants, imposed upon Perfecto
Tayag, the penalty of four years and two
months of prision correccional plus the
additional penalty of six years and two
months of prision correccional plus also an
additional penalty of ten years, he being
likewise a habitual delinquent with a greater
number of former convictions. From this
sentence, the defendants appealed.
The facts disclosed by the evidence of the
prosecution, which are certainly
overwhelming and leave no room for doubt,
are: that a little after two o'clock on the
morning of September 12, 1933, the said two
appellants, armed with a bolo and a screw
driver, went to Juan Nicasio Go Cuay's store,
which also served as his dwelling, located, as
aforestated, at No. 325-A San Marcelino
Street, of the City of Manila. Believing that
they were unnoticed, they proceeded to open
one of the doors of the said store with the
tools bolo and screw driver which they
then carried and which, of course, were not
the proper means for that purpose. After they
had succeeded in loosening one of the bars
of the door and upon becoming aware that
the inhabitants of the store had been
awakened, they tried to escape but
policemen A. Santos, J. Rubic and G. Malap,
who up to that time had been watching them,
detained and placed them under arrest. The
said policemen found the bolo, Exhibit A, in
the possession of the appellant Perfecto
Tayag, and the screw driver, Exhibit B, in the
possession of the other appellant Atanasio
Morales.
In the store of said Juan Nicasio Go Cuay
there were, at that time, a little more than P40
in cash, which represented the proceeds of
his sales the day before, and merchandise
valued at around P1,000. However, there is
absolutely nothing of record to show that the
said appellants' intention on that occasion
was to commit robbery, or that they somehow
knew that they would find money amounting
to P40 therein. In every criminal proceeding,
the guilt of the accused must be proven by
means of competent and conclusive evidence
and should never be based on mere
inferences, however reasonable these may
be, particularly when there still remains, as in
this case, a sufficient indication of the
existence of an intention different from that of
committing robbery. It would be arbitrary, not
to say absurd, to suppose that had the
appellants succeeded in entering the store of
said Juan Nicasio Go Cuay, they would have
carried away all the goods therein, because
they would not have been able to do so by

themselves, not having any vehicle at their


disposal.
The act committed by the appellants simply
constitutes the crime of attempted trespass to
dwelling, as defined in article 280, paragraph
2, of the Revised Penal Code, that is,
trespass committed by means of violence.
(Decision of the Supreme Court of Spain of
February 8, 1899, Viada, Fourth Supplement,
p. 399; Decision of the Supreme Court of
Spain of December 10, 1900, Id., p. 401;
Decision of the Supreme Court of Spain of
April 5, 1890, Hidalgo, Penal Code, vol. 2, p.
512.)
The documentary evidence presented by the
prosecution, consisting of Exhibits C, D and
E, which are the records of criminal cases
No. 38880, 38924 and 38923, does not show
that the appellants are habitual delinquents.
The most that the said documents disclose is
that at about the same time, the appellants
committed the crimes of theft with which they
were charged therein, and therefore the 10th
aggravating circumstance, that is, previous
convictions, should be taken into
consideration against them. The aggravating
circumstance of nocturnity should likewise be
considered against the said appellants.
Wherefore, and taking into consideration that
the penalty lower by two degrees than that
prescribed for trespass to dwelling by means
of violence in article 280, paragraph 2, of the
Revised Penal Code is arresto mayor in its
minimum and medium periods (from one
month and one day to four months), the
penalty imposed upon the appellants is
hereby modified by sentencing them, each to
three months and one day of arresto mayor,
with the corresponding accessory penalties,
and to pay the proportionate part of the costs
of both instances, without prejudice to their
being credited with one-half of the time during
which they have undergone preventive
imprisonment, in accordance with article 29 of
the Revised Penal Code. So ordered.
March 31, 1903
G.R. No. 1114
THE UNITED STATES, complainantappellee,
vs.
BARTOLOME OSTREA, ET
AL., defendants-appellants.
MAPA, J.:
It is sufficiently appears from the record that
the defendants, at the time in question, went
to the house of Juan Rodriguez, alleged to
have been broken into, with the intent of
making an entrance there at all cost, even
against the will of the said Juan Rodriguez. It

16

does not, however, appear to be certain that


they did in fact succeed in entering, as the
record is not very explicit upon this point. It is
evident that they succeeded in entering the
first door of the house, either violently by
breaking it open, as alleged by the
complainant, or because they found it already
open, as testified by the defendant Bartolome
Ostrea. It does not appear, however, whether
this door formed an integral part of the house
or whether, on the contrary, it was an outer
door, separate and independent from the
body of the house. We are inclined to believe
that the latter is the fact, in view of the
testimony in the case. The complainant calls
this first door the frontdoor, and adds that
upon seeing it had been broken by the
accused he immediately closed the second
door and did not allow them to enter his
house. In another part of his testimony he
states that when they (the accused) saw
that they could not enter the house they went
away. The other witness for the prosecution,
Benigno Sebastian, testifies that Bartolome
Ostrea called to his wife, who was in the
house, but that he could not get in, because
the doors were closed. Bartolome Ostrea, on
his part, in his testimony at the trial says that
the first door was open, and that the following
door at the entrance to the house was closed.
From this statement it would appear that the
second door was that at the entrance to the
house in question.
In view of the terms in which these witnesses
expressed themselves and the lack of other
more precise data in the record it may be
concluded that, notwithstanding the fact that
the defendants entered the first door, they did
not succeed in entering the house. It is
possible that this conclusion is not in
conformity with the facts as the really
occurred, but is the legal conclusion from the
data disclosed by the record and upon which
alone we must rely for our decision.
In consequence, the defendants are only
responsible for the crime of an attempted
forcible entry into the dwelling, and not for a
consummated entry, as considered by the
court below in the judgment appealed. It has
been proven that in the execution of this act
the defendants employed violence and
intimidation, and for nearly half an hour tried
to push open the door at the entrance to the
house, and that Bartolome Ostrea fired
several shots from his revolver upon seeing
that Rodriguez refused to open the door. The
latter says that Ostrea fired three or four
shots. The other witnesses for the
prosecution only heard one. It is a matter of
indifference, however, whether one or more
shots were fired for the purposes of

considering the circumstance of intimidation,


more especially in view of the fact that
Bartolome himself admits that he discharged
the revolver which he carried, although he
adds that he only fired in the air.
The concurrence of this circumstance brings
the act in question within the sanction of
paragraph 2 of article 491 of the Penal Code.
In favor of the accused we must consider the
mitigating circumstance of drunkenness (No.
6 of art. 9 of the Penal Code), as it appears
from the testimony of the complainant himself
and that of Benigno Sebastian that they were
drunk at the time in question, and that they
are not habitual drunkards. In the present
case we must consider as mitigating the
circumstance that the complainant, Juan
Rodriguez, is the father-in-law of Bartolome
Ostrea, by virtue of the provisions of
paragraph 1 of article 10, for, in view of this
close relationship, it is not considered that the
defendant would regard himself as a stranger
in the home of the complainant, to which it is
to be presumed he ordinarily had free access
as a member of the Rodriguez family. The
fact, sufficiently proven in the case, that he
believed his wife, the daughter of the said
Rodriguez, was in the house at the time in
question, may also have contributed to lead
him to believe, although erroneously, that he
had a right to enter the house.
Upon the grounds set forth, and in view of the
provisions of articles 66 and 75, paragraph 2
of article 91, and article 92 of the Penal Code,
we condemn each of the defendants to a fine
of 325 pesetas, or to subsidiary
imprisonment, in case of nonpayment, at the
rate of one day for each 12 1/2 pesetas. The
judgment appealed, thus modified, is
affirmed, with the costs of this instance to the
defendants. So ordered.
December 2, 1929
G.R. No. 30993
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
PIO VIVAS, SANTIAGO LAUDE, LORENZO
CARAZO and RAYMUNDO
MECO,defendants-appellants.
AVANCEA, C.J.:
At about 10 o'clock on the night of September
1, 1928, Pablo Estobesa and Hermogenes
Eusebio, night-watchmen, and Joaquin
Unlao, guard, in the College of Agriculture
located in Los Baos, Laguna, inspected the
paying teller's office and found all the doors
and windows closed, except one window
which was ajar. Seeing that near the lock of
this window was a hole large enough to put

the fist through, they lighted the room through


it, and saw that all was well. Before leaving
the place they closed the window and locked
it from within, introducing the hand into the
hole near the lock.
At half past 12 that night Unlao went to the
college stores to inspect them, and Pablo
Estobesa went to the garage, where he met
the chauffeur Pablo Estrada who had driven
an automobile from Manila. After conversing
for some time, Estobesa and Estrada heard a
noise coming from the office of the
paymaster; Estobesa went up to the office
and found that the window they had closed
was again open, and in front of it was
standing Raymundo Meco, whom he knew to
be one of the workmen in one of the
collection departments. Although he had
recognized him, Estobesa, acting as guard,
asked him twice who he was, and Raymundo,
instead of answering him, hid himself behind
a column. Estobesa, becoming suspicious of
Raymundo's actions fired a shot in the air
with his revolver as a signal for help.
Raymundo ran behind the building, and at the
same time, five persons jumped out of the
window that had been opened again, and
joined Raymundo. Estobesa approached the
group, scrutinized their faces, and recognized
that they were Raymundo Meco, Lorenzo
Carazo, Santiago Laude, Pio Vivas and the
Mulingtapang brothers. Raymundo was
armed with a pistol and the others with
penknives. The Mulingtapang brothers then
attacked Pablo Estobesa with their knives
wounding him on the right arm and in his
back, and in self-defense, he used his
revolver and killed the two brothers.
Meanwhile, Estrada and Unlao came up to
where Estobesa was, and confronted the
other four members of the group, who
attacked and killed Unlao.
After the incident an investigation was made
and a piece of iron was found beside the
paymaster's safe. The hinge of the safe was
broken and its covering was on the ground.
The safe contained about P12,000.
An information was filed against Raymundo
Meco, Lorenzo Carazo, Santiago Laude, and
Pio Vivas for the crime of frustrated robbery
with homicide, as principals. The trial court
found these defendants guilty of the two
independent crimes: the homicide of Joaquin
Unlao, and physical injuries on the person
Pablo Estobesa, sentencing each for the first
crime to seventeen years, four months, and
one day of reclusion temporal, with the
accessaries, and to indemnify the family of
the deceased Joaquin Unlao jointly and
severally in the sum of P500; and for the
second, to four months and one dayarresto

mayor, with the accessaries, and to pay a fine


of 1,500 pesetas, with subsidiary
imprisonment in case of insolvency, and the
proportional share of the costs. From this
judgment the defendants appealed.
With regard to the identity of the appellants,
the evidence in our opinion leaves no room
for doubt. The witnesses who testified in this
case to the effect that the appellants were
four of those who committed the crime, took
an active part in the occurrence and had
every opportunity to see and recognize the
appellants. The evidence adduced to sustain
the alibi alleged by the appellants can in no
wise offset the evidence presented by the
Government.
The court below held that the evidence was
insufficient to prove an attempted robbery,
because if the appellants conceived the
intention to rob the college safe, they
desisted of their own free will. This conclusion
is unfounded. The appellants commenced
their proposed robbery with direct overt acts,
by breaking the lock of the safe where the
amount of P12,000 was kept. And although
they failed to carry out all the acts of
execution which should have produced the
crime of robbery, it was not due to their own
voluntary desistance, but to the shot fired in
the air by Estobesa in front of the building.
For these reasons we are of opinion that the
appellants are guilty as charged in the
information, of the crime of attempted robbery
with homicide, and physical injuries, and
therefore article 506, in connection with
paragraph 1 of article 503 of the Penal Code
is applicable. The aggravating circumstances
of cuadrilla and nighttime were present in the
commission of the crime, with no mitigating
circumstance to offset them.
In conformity with the Attorney-General's
recommendation, the judgment appealed
from is modified, the appellants being
sentenced to life imprisonment, the
accessaries, and the costs. So ordered.
December 29, 1948
G.R. No. L-1798
THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO ACUSAR, MARCELINO
ACUSAR, IGMIDIO ACUSAR, ANSELMO
ACUSAR, and OTHERS
UNKNOWN, defendants.
DOMINGO ACUSAR and IGMIDIO
ACUSAR, appellants.
PERFECTO, J.:
At about eleven o'clock in the morning of
August 21, 1946, the brothers Domingo and

17

Marcelino ACUSAR went to the U.S. Army


Ammunition Depot at barrio Balte, Batangas,
to which formerly they used to go together
some firewood. Domingo boarded a truck,
used by the depot for carrying trash, when it
was about to move out. After the truck had
traveled some distance, about fifty meters,
Domingo threw out from the truck three
spades. Upon seeing it, Romero Velasquez,
the foreman of the depot, ordered the
laborers to take the spades, Laborer
Francisco Orense went running to pick them
up, Marcelino coming behind him, evidently in
a race to reach for the spades. Orense
placed the spades among the implements
used in the depot.
At about twelve o'clock that same day
accompanied by Anselmo Acusar, another
brother, Domingo returned to the depot and
asked the laborers, who were then taking
their noontime, rest, who took the three
spades. Orense answered that he was the
one on orders of the foreman. At this juncture
Romero approached the group and was
asked by Domingo who ordered the taking of
the spades. Romero answered that he was
the one because, as foreman, he was
responsible for them. Domingo demanded
that the spades be given to him because he
had promised them to somebody else.
Romero rejected the demand. alleging that
the spades were placed under his care and
responsibility, he had signed receipts for them
and he would be accountable for their loss.
Domingo insisted in his demand and Romero
in his refusal.
The discussion became heated, and
Domingo went to one side where he picked a
bolo and with it he hacked twice Romero at
the back. Romero fell down. Although he was
able to stand up once, he fell down again
under the continued attacks of Domingo, who
was helped by his brothers Anselmo and
Marcelino, both using knives to wound
Romero. One of the assailants said that
Romero should be left alone because he was
dying, and Romero was left alone lying
wounded on the ground.
At the time he was being attacked, an old
man, Gregorio Velasquez, father of Romero
and who was in the depot as one of the
laborers, had been shouting to the assailants
to leave alone his son because he was not
offering any resistance. Upon noticing it,
Igmidio Acusar, father of Domingo, came
down from his house, accompanied towards
Gregorio and started pounding him with the
butt of a rifle, while his two companions beat
the old man with bakawan sticks.
After leaving Romero alone and upon seeing
what was happening where Gregorio

Velasquez was, Domingo, Anselmo and


Marcelino, each armed with a crowbar that
they picked lying among the empty boxes,
joined their father in beating to fall, Domingo
hacked him once on the back with a bolo.
Gregorio fell unconscious and the assailants
fled.
As a result of the affray, Gregorio Velasquez
did a few minutes after his arrival in the
Station Hospital of the American Army in
Batangas, due to multiple and severe
fractures of the skull, which appeared like an
egg that had been pounded and battered to
pieces by blows. The deceased had received
an incised wound on the shoulder.
The right thumb of Romero Velasquez was
severed and he suffered several wounds. He
had to stay for many days in the hospital, less
than a month, and had an additional twoweek medical treatment at the dispensary
after he left the hospital.
The facts of the case, as above narrated,
have been conclusively proved. Direct
participation of Domingo and Igmidio Acusar
in causing death of Gregorio Velasquez of
Domingo in almost killing Romero Velasquez,
has been established by the testimonies of
Francisco Orense and Crisanto Atienza.
Igmidio tried to establish as alibi. alleging that
in the morning of August 21, 1946 he went to
the town of Cuenca to look over a bull he was
intending to purchase from Fausto Dipasupil.
He was accompanied by his son, Marcelino,
and both started from Cuenca to their home
at about 1 o'clock in the afternoon and,
therefore, he could have not taken part in the
assault that caused the death of Gregorio
Velasquez. Marcelino Acusar and Fausto
Dipasupil testified to corroborated him but the
lower court has correctly rejected the
defense. The testimonies of the three
witnesses for the prosecution appear to be
more reliable. No improper motive was shown
why laborers Francisco Orense and Crisanto
Atienza would have falsely imputed to Igmidio
active participation in , and the
commencement of, the assault against
Gregorio Velasquez.
The defense does not deny, but admits that
Orenses and Atienza were in the scene of the
incident and were eyewitness to the
wounding of Romero and the killing of
Gregorio. It is unquestioned that the whole
incident took place in the presence of other
persons, aside from those who testified at the
trial, and if the accusation against Igmidio
were false, there would have been one or
more who, not enduring to se an innocent
falsely accused of a crime he has not
committed, would have come in the open to
testify in court and champion his cause. The

more or less widespread cynicism


notwithstanding human experience has
conclusively shown that the essential feeling
of righteousness in the average human being
is a reality that cannot be ignored.
Domingo tried to show by his own testimony,
unsupported by any other witness, that in
wounding Romero he acted in self-defense,
but not one of the many actors and witnesses
of the whole incident corroborated him. He
said that between Romero and himself there
was exchange of words and counter-charges
as thieves for the pilferage of goods in the
depot and that Romero, provoked by the
counter-accusation against him, drew out an
open knife and tried to stab Domingo who
evaded the blow and ran away. But Romero
chased him until Domingo was able to hold a
bolo which was on top of some boxes. There
was a scuffle. While Romero suffered many
wounds and lost his right thumb, Domingo,
due to his dexterity in fencing, was able to
come out unscathed.
The inverisimilitude of Domingo's version is
apparent. It is unbelievable that in such a
long struggle narrated by Domingo, the latter
should come out without a single scratch on
the skin, while Romero should suffer so many
wounds. Not even extreme ability in fencing
can explain such an extraordinary result,
considering that Romero was not a weakling.
On the contrary, his survival from the many
wounds he received is an evidence that he
was endowed with unusual vitality. According
to Dr. Schrank, two back wounds of Romero
and one on his thigh were caused by a sharp
instrument like a knife, not a bolo. The three
wounds belie completely the story of
Domingo.
The lower court found the two appellants
guilty of murder for the death of Gregorio
Velasquez and found Domingo guilty of
serious physical injuries caused to Romero
Velasquez. The Solicitor General is of opinion
that the crime committed for the killing of
Gregorio should not be considered murder
but homicide. The abuse of superior strength
to make the crime murder, not having been
alleged in the information, should only be
considered as aggravating circumstances for
the crime of homicide. As regards the attack
on Romero, the Solicitor General maintains
that, from the evidence, Domingo's intention
to kill was manifest, he and his co-assailants
having used deadly weapons such as bolos
and knives. As a matter of fact, they left
Romero for dead. But as Dr. Schrank, witness
for the prosecution, has expressed the doubt
that the wounds suffered by Romero would,
without medical assistance, have caused his
death, the Solicitor General is of opinion that

the crime committed by Domingo is only


attempted homicide. The position of the
Solicitor General is well taken. Igmidio is
responsible as principal of homicide for the
slaying of Gregorio. Both prosecution and
defense, correctly agreed that Domingo
should only be found guilty as accomplice in
the homicide, there being no conspiracy and
his contribution being a mere lacerated
wound on the shoulder of the deceased
which was described by Dr. Schrank as
moderate and not fatal.
Accordingly, Igmidio Acusar is sentenced to
an indeterminate penalty of from six years
and one day prision mayor to seventeen
years, four months and one day of reclusion
temporal, and Domingo Acusar, as
accomplice in the crime of homicide, to suffer
an indeterminate penalty of from two years,
four months and one day of prision
correccional to eight years and one day of
prision mayor, and as principal of the crime of
attempted homicide, to suffer from one month
and one day of arresto mayor to two years,
four months and one day of prision
correctional.
For the loss of the right thumb of Romero
Velasquez the latter shall be indemnified by
Domingo Acusar in the sum of P500, and
both Igmidio and Domingo Acusar shall
indemnify jointly and severally the heirs of the
deceased Gregorio Velasquez, as
recommended by the prosecution and in
accordance with the doctrine laid down
inPeople vs. Amansec (L-927, 45 Off. Gaz.
[Supp. to No. 9], 51)[[1]] in the sum of P6,000,
and to pay the costs.
[G.R. No. 1593. March 20, 1905. ]
THE UNITED STATES, ComplainantAppellee, v. BENITO
MERCADO, Defendant-Appellant.
SYLLABUS
1. PLACE OF TRIAL; OBJECTION;
REVERSAL. The fact for the convenience
of witnesses a case is tried in the Prison of
Bilibid, the defendant not having objected
thereto at the time, is no ground for reversal.
2. BODILY INJURIES. If the evidence so
warrants, the court may before the expiration
of the ninety days mentioned in article 416 of
the Penal Code, find that the effects of the
injury will continue for a longer time than said
period.

18

WILLARD, J. :
There was no substantial dispute about the
facts in this case. The defendant, Benito
Mercado, and the injured party, Julio Salazar,
were on the 21st day of February, 1903, both
confined in the Prison of Bilibid. On that day
the defendant, without any apparent
provocation, struck Salazar upon the side of
the head with a heavy club.
At the trial Dr. Lyon, who saw the injured
person within a minute or two after he was
hurt, testified that under the most favorable
conditions it would be impossible for Salazar
to recover the normal condition of his hearing
within a period of ninety days, and that it was
absolutely impossible for him ever to recover
such use, and that there was only a slight
probability that he would ever recover a part
of his hearing.
The defendant, in this court, asks that the
judgment be reversed upon two
grounds:chanrob1es virtual 1aw library
(1) The case was tried within the Prison of
Bilibid, probably because the defendant, the
complaining witness, and nearly all of the
other witnesses were there confined as
prisoners. It is claimed by the defendant that
this trial was illegal because there was no
provision of the law which authorized the
judge to hold a trial at that place and because
such a trial was not the public trial which is
guaranteed to the defendant by the act of
Congress. It affirmatively appears from the
record that the defendant offered no objection
to the trial of the case in Bilibid Prison. This
statement appears in the record prior to the
taking of any testimony, and it is clear that the
question where the trial was to be held was
raised and determined before the trial was to
be held was raised and determined before
the trial was commenced. Under these
circumstances it is not necessary for us to
decide whether, if there had been objection
on the part of the defendant, the trial would
have been legal. It is sufficient to say that this
was one of the rights which the defendant
could waive, and as he did expressly waive it
before the trial commenced it is too late for
him now to insist that the trial was erroneous.
(2) The injury was committed on the 21st day
of February, 1903, and the trial took place on
the 7th of March, 1903. During the testimony
of Dr. Lyon the defendant asked that the trial
be suspended until the court could be
absolutely certain that the injury would be
permanent, or, at least, that its effects would

continue for more than ninety days, and so


bring the case within the provisions of article
416 of the Penal Code.
The question for the court to determine was
whether or not the defendant had
permanently lost his hearing or whether he
would be incapacitated from his usual work of
be sick for more than ninety days. The
testimony of Dr. Lyon was positive to the
effect that he was permanently injured and
that he would never recover his hearing.
Under these circumstances we do not think it
was necessary for the court to postpone the
further hearing of the case until the expiration
of ninety days. There was evidence before it
from which it was justified in finding that the
injury was permanent.
As suggested by the Attorney-General in his
brief, the fact that no motion for a new trial
has been made by the defendant is indicative
of the fact that the judgment of the court
below as to the permanent character of the
complaining witnesss injuries was well based
upon the evidence which he then had before
him.
The judgment of the court below is confirmed,
with the costs of this instance against
the Appellant.
[G.R. No. L-3620. March 25, 1907. ]
THE UNITED STATES, Plaintiff-Appellee, v.
CATALINO DE LA CRUZ AND JOAQUIN DE
LA CRUZ, Defendants-Appellants.
SYLLABUS
ABDUCTION. Held, That the facts in this
case constitute attempted abduction rather
than the frustrated crime. (Following U.S. v.
Salazar; U.S. v. Luna, 4 Phil. Rep., 269.)
TRACEY, J. :
Catalino de la Cruz and Joaquin de la Cruz,
in the Court of First Instance of Bulacan, were
adjudged guilty of the crime of frustrated
abduction.
With eight companions they went first to one
of two contiguous houses in the barrio of
Santol in Malolos and tied up some men
whom they found therein; they then
proceeded to the adjoining house where they
called out that all the men there must come
down, as they were police agents. The
woman above answering that the men were
absent from the house, Catalino de la Cruz,
with one companion, went up and meeting

Eulalia de los Santos, forcibly dragged her


downstairs and in spite of her resistance
carried her away to a distance of 25 brazas
from the house, when they were interrupted
by neighbors answering her cries.

days thereafter let the case be remanded to


the court from whence it came for proper
action. So ordered.

It appears that Catalino, having for a long


time been seeking to marry this girl, had been
rejected by her about a month before and told
that she was pledged to another. One
defense set up in his behalf is that even if we
accept the facts of the charge as proved, yet
we should assume that his object in carrying
her off was not to do her any injury other than
that notoriety of the adventure. There is
nothing in the evidence that justifies such a
forced interpretation of his acts, which we
think, on the contrary, must be given their
natural significance and held to indicate an
unchaste design, under article 445 of the
Penal Code.

THE PEOPLE OF THE PHILIPPINE


ISLANDS, Plaintiff-Appellee, v.
ANASTACIO DAGMAN, ET
AL., Defendants-Appellants.

The trial court characterized the crime as


frustrated abduction. In an occurrence of this
nature it is extremely difficult to draw the line
between the attempted and the frustrated
crime. It seems, however, that this court in
various causes has held facts similar to those
now before us to constitute a mere attempt,
and it is the opinion of the majority that this
criterion is to be adopted in the present case.
(U.S. v. Salazar, 1 No. 2483, November 15,
1905; U.S. v. Luna, 3 Off. Gaz., 267. 2)
Catalino de la Cruz also by his own testimony
and that of other witnesses sought to prove
an alibi. On this point we do not think that his
testimony overcame his positive identification
by three witnesses who were present at the
occurrence and who also identified his
brother Joaquin.
There were three aggravating circumstances
in this case, nocturnity, the false
impersonation of an officer of justice, and the
perpetration of the offense in the womans
house.
The judgment of the lower court is reversed
and both accused are sentenced to the
punishment of five years imprisonment
(prision correccional) with the accessories
under article 61 of the Penal Code and to
indemnify the injured party, Eulalia de los
Santos, in the sum of 200 pesos; in case on
insolvency to suffer subsidiary imprisonment,
not exceeding one year, and to pay the costs
of both instances.
After the expiration of ten days let judgment
be entered in accordance herewith and ten

[G.R. No. 23133. August 20, 1925. ]

SYLLABUS
1. MURDER; WHETHER SHOULD BE
CLASSIFIED AS FRUSTRATED OR
ATTEMPTED. The law and the
jurisprudence on the subject of frustrated and
attempted murder examined and followed.
(Penal Code, art. 3, par. 2; U.S. v. Mendoza
[1918], 38 Phil., 691; U.S. v. Domingo and
Dolor [1911], 18 Phil., 250; U.S. v. Marasigan
[1908], 11 Phil., 27; U.S. v. Reyes [1906], 6
Phil, 38; U.S. v. Sabio [1903], 2 Phil., 485;
U.S. v. Taguibao [1901], 1 Phil., 16; U.S. v.
Eduave [1917], 36 Phil., 209; U.S. v. Sanchez
[1911], 20 Phil., 427, citing decisions of the
supreme court of Spain of April 17, 1895,
September 29, 1881, and December 31,
1890; U.S. vs Agoncillo and Admana [1916],
33 Phil., 242; U.S. v. Bastas and De la Serna
[1905], 5 Phil., 251; U.S. v. Poblete [1908], 10
Phil., 578; Albert, The Law on Crimes, pp. 3133; and 30 C.J., p. 14.)
2. ID.; ID. The distinction between
frustrated murder and attempted murder is
this: In frustrated murder the accused
performs all of the acts which he believes
necessary to consummate the crime. Death,
however, fails to follow for causes entirely
apart from his will. In attempted murder the
accused begins the commission of the crime
by overt acts, but involuntarily desists from
performing the other acts necessary to
consummate the crime, he being prevented
from so doing by some cause outside of his
own will. (U.S. v. Lim San [1910], 17 Phil.,
273.)
3. ID; ID. Considering (1) the intent upon
the part of the assailants to take the life of the
person attacked; (2) the deadly weapons
used; (3) the vital parts of the body struck
during the assault; (4) the violence of the
attack; (5) the statement by the aggressors of
their purpose to kill; (6) the belief of the
aggressors that they had killed; and (7) the
presence of causes independent of the will of
the perpetrators which saved the victim
playing possum by him the crime should
be classified as frustrated murder.

19

MALCOLM, J. :

On the 2nd of May, 1924, Elias Magbual, an


employee of the hacienda "La Esperanza,"
while in the performance of his duties, was
treacherously attacked by a crowd of
persons, probably about forty in number and
was nearly killed. The motive of the crime
was that the persons who harbored enmity
against Magbual had previously been
dispossessed of portions of the land by
judicial order. The attack began by the crowd
shouting "Avance" and with Magbual
attempting to escape. But a stone thrown by
Anastasio Dagman hit Magbual in the breast,
and knocked him down. In this position, he
was attacked by Luis Pacunla who wounded
him with a lance. Magbual made another
attempt to flee only to fall again and to
receive wounds made by bolos and clubs
wielded by the accused. Magbual escaped
death from his tormentors by the ruse of
feigning death.
On these facts, seven persons, Luis Pacunla,
Andres Rebollido, Isabelo Rebollido, Juan
Olonan, Anastasio Dagman, Valentin
Tabladillo, and Luciano Pacunla, were
charged in the Court of First Instance of
Nueva Ecija with the crime of frustrated
murder. After trial, each of the accused was
found guilty by the Honorable Eduardo
Gutierrez David, Judge of First Instance, of
the crime of frustrated homicide and was
sentenced accordingly.
From the judgment last mentioned, all of the
defendants have appealed. In their behalf,
two errors are assigned and argued, namely,
(1) that the trial judge erred in finding that the
accused had the intention to kill Elias
Magbual, the offended party, and (2) that the
trial judge likewise erred in finding that there
was an agreement to kill Elias Magbual and
therefore in sentencing all of the accused to
the same penalty, without taking into account
the participation of each one of them in the
commission of the crime, if any.
Neither of these points is well taken. The trial
judge found each of the accused to have
been proved guilty beyond a reasonable
doubt of a crime included in the information.
There is ample proof to substantiate this
finding. The murderous intent of the accused
and their joint purpose are likewise clearly
demonstrated.
The trial judge, it will be recalled, found the

defendants guilty of the crime of frustrated


homicide. The Attorney-General, however,
recommends that the crime be classified as
frustrated murder in view of the presence of
the qualifying circumstance of treachery, and
that the penalty then be placed in the
maximum of that provided by law because of
the presence of the aggravating circumstance
that prohibited arms were used by the
assailants. A majority of the court agree with
the Attorney-General. We believe the felony
should be classified as frustrated rather than
attempted, under the law and the local
jurisprudence.
The murder should be regarded as frustrated
because the offenders performed all of the
acts of execution which should precede the
felony as a consequence but which,
nevertheless, did not produce it by reason of
causes independent of the will of the
perpetrators; in this instance, the playing
possum by Magbual. (Penal Code, art. 3, par.
2.) There was an intent upon the part of the
assailants to take the life of the person
attacked, which intent may be gathered from
the circumstances surrounding the attack; in
this instance, the nature of the wounds, the
cry of the accused, "Vamos a matarle," and
their fingering the nose of Magbual to see if
respiration continued. (U.S. v. Mendoza
[1918], 38 Phil., 691; U.S. v. Sanchez [1911],
20 Phil., 427; U.S. v. Domingo and Dolor
[1911], 18 Phil., 250; U.S. v. Marasigan
[1908], 11 Phil., 27; U.S. v. Reyes [1906], 6
Phil., 38; U.S. v. Sabio [1903], 2 Phil., 485;
U.S. v. Taguibao [1901], 1 Phil., 16.) Deadly
weapons were used, blows were directed at
the vital parts of the body, the aggressors
stated their purpose to kill and thought they
had killed. The subjective phase of the crime
was entirely passed, and subjectively
speaking, the crime was complete. (U.S. v.
Eduave [1917], 36 Phil., 209.) The particular
parts of the body of the person struck during
the assault, the deadly character of the
weapons used, the violence of the attack, and
the accomplishment of the crime with
alevosia in such manner as to insure the
safety of the assailants while depriving the
victim of the opportunity to make defense,
classifies the crime as frustrated murder.
(U.S. v. Sanchez [1911], 20 Phil., 427, citing
decisions of the supreme court of Spain of
April 17, 1895, September 29, 1881, and
December 31, 1890.) And finally, that the
victim did not die, was owing to a chance or
accident or reason independent of the
criminal act performed. (U.S. v. Agoncillo and
Admana [1916], 33 Phil., 242.) (See also U.S.
v. Bastas and De la Serna [1905]; 5 Phil.,

251; U.S. v. Poblete [1908], 10 Phil., 578;


U.S. v. Domingo and Dolor [1911], 18 Phil.,
250; Albert, The Law on Crimes, pp. 31-33;
and 30 C.J., 14.)
In the decision in the case of United States v.
Lim San ([1910], 17 Phil., 273, 276), Mr.
Justice Moreland speaking for a unanimous
court, in part, said:jgc:chanrobles.com.ph
"The court found the defendant guilty of the
crime of attempted murder. We are unable to
agree with that finding. We regard the crime
as frustrated murder. The distinction between
frustrated murder and accused performs all of
the acts which he believes necessary to
consummate the crime. Death, however, fails
to follow for causes entirely apart from his
will. In attempted murder the accused begins
the commission of the crime by overt acts,
but involuntarily desists from performing the
other acts necessary to consummate the
crime, he being prevented from so doing by
some cause outside of his own will. In the
case at bar it appears clearly that the
defendant believed that he had performed all
of the acts necessary to consummate the
crime of murder, and, therefore, of his own
will, desisted from striking further blows. He
believed that he had killed Keng Kin. Death
did not result for reasons entirely apart from
the will of the accused. This surely stamps
the crime as frustrated murder. If, after the
first blow, someone had rushed to the
assistance of Keng Kin and by his efforts had
prevented the accused from proceeding
further in the commission of the crime, the
accused not believing that he had performed
all of the acts necessary to cause death, he
would have been guilty of attempted
murder."cralaw virtua1aw library
Agreeable to the recommendation of the
Attorney-General, the judgment appealed
from is notified and each of the defendants
and appellants is sentenced to fourteen
years, eight months and one day
imprisonment cadena temporal, with the
accessory penalties provided by law, and to
pay a one-seventh part of the costs of each
instance, and all of the defendants and
appellants jointly and severally are sentenced
to reimburse the offended party in the amount
of P65 for medical services. So ordered.
[G.R. No. L-5335. November 8, 1910. ]
THE UNITED STATES, Plaintiff-Appellee, v.
LIM SAN, Defendant-Appellant.
SYLLABUS

1. CRIMINAL PRACTICE AND


PROCEDURE; COMPLAINT OR
INFORMATION; CHARGE OF "ATTEMPTED
MURDER," CONVICTION FOR
"FRUSTRATED MURDER." Although the
crime designated in the information is that of
"attempted murder," this court may, on
appeal, convict the accused of "frustrated
murder," notwithstanding the fact that the
latter crime is the more severely punished,
when the crime of frustrated murder is clearly
and unmistakably described by the facts set
forth in the information.
2. ID.; ID.; CRIME CHARGED IS THAT
DESCRIBED. The crime of which the
defendant stands accused is that described
by the facts stated in the information, and not
that designated by the fiscal in the preamble
thereof.
3. ID.; ID.; DESIGNATION OF CRIME BY
TECHNICAL NAME IS A CONCLUSION OF
LAW. The designation of the crime by
name in the caption of the information is a
conclusion of law on the part of the fiscal. The
denial of that conclusion raises no issue.
4. ID.; ID.; ISSUE, AND HOW RAISED. An
issue in a criminal action is one of fact. It is
raised by the allegation of facts in the
information and the denial of those facts by a
plea of not guilty.
5. ID.; ID.; DESIGNATION OF CRIME BY
TECHNICAL NAME NOT IMPORTANT. It
is not necessary, for the protection of the
substantial rights of the accused, nor for the
effective preparation of his defense, that he
be informed of the technical name of the
crime of which he stands charged. He must
look to the facts alleged.
6. ID.; ID.; COURT ALONE CAN CONCLUDE
WHAT CRIME HAS BEEN COMMITTED.
As a matter of fact the court is the only
person or institution authorized by law to say
what crime has been committed. Such
designation is a conclusion of law resulting
from the facts proven upon the trial. Until that
time arrives it is of no consequence, either to
the people or to the accused, what the
technical name of the crime of which the
accused is charged may be.
7. ID.; ID.; DESIGNATION OF THE CRIME
BY ITS TECHNICAL NAME IS USURPATION
OF JUDICIAL FUNCTION. The
designation by the fiscal of the crime in the
information by its technical name is a
usurpation of the powers of the court and, if

20

binding, would be in effect an adjudication by


him of the crime of which the accused must
be convicted, if he were to be convicted of
any offense.
MORELAND, J. :
The defendant in this case was convicted of
the crime of attempted murder in the Court of
First Instance of the city of Manila and
sentenced to seven years of presidio mayor
and to pay one-third of the costs of the trial.
It is alleged that on or about the 18th day of
October, 1908, the defendant Lim San
attempted to kill one Keng Kin by assaulting
him with a bolo and inflicting upon him
several wounds; that one of the wounds
would have proved fatal had not the injured
person received prompt and efficient medical
assistance.
The guilt of the defendant was established
beyond reasonable doubt, if the testimony of
Keng Kin, Chua Hung, and Gregorio Mariano
is to be believed. All of these witnesses testify
that the accused assaulted Keng Kin without
cause or provocation and stabbed him
several times with a bolo. All unite in saying
that Keng Kin, at the time, was standing just
outside the limits of the street, his attention
upon a dog which he had with him, when the
accused leaped upon him with his bolo and
committed the acts complained of. All of
these witnesses saw the accused in the act,
fully recognized him, and later identified him
as the person who committed the offense.
The defense interposed by the accused was
an alibi. He produced several witnesses to
support it. Between the testimony of these
witnesses and that of the witnesses of the
prosecution there is an irreconcilable
contradiction. The court below, having heard
the witnesses testify and having observed
their manner and attitude upon the witness
stand, decided that credibility lay with those
of the prosecution. A careful reading of the
testimony discloses no reason why the
conclusion of the court in this particular
should be disturbed. The court decided
between witness and witness. There are no
conditions found in the record which render
the story told by the witnesses for the
prosecution inherently improbable. There is
no circumstance disclosed which impeaches
their truthfulness. There is nothing found
which impugns in any way their credibility.
Under such conditions we will not interfere
with the conclusion of the trial court
respecting credibility.

The crime in this case was committed about


10 oclock at night. It was somewhat dark, the
only light being that given by a lamp
suspended from the ceiling of a tienda
directly across the street. Keng Kin was not
expecting to be attacked. His attention was
directed exclusively to his dog. He was wholly
unsuspicious. Every faculty was withdrawn
from consideration of danger. The accused,
without warning of any kind, careful not to
disturb the quiescent attitude in which he
found his victim until the very instant of the
blow, attacked him with great rapidity and
force, driving his bolo straight into his face.
On the first blow the point of the knife entered
the left eye, penetrating to and slightly cutting
the brain, destroying the eye completely and
rendering him entirely incapable of protecting
himself. As a necessary result, the assaulted
had no opportunity whatever to defend
himself, to escape the blow, to ward it off, or
to mitigate its consequences. He was wholly
surprised and incapable of offering the
slightest resistance. This means simply that
the accused committed the crime maliciously
and treacherously by methods which tended,
directly and especially, to insure him against
risk that might proceed from any defense
which his victim might make. In other words,
the combination of the conditions, darkness,
distracted attention, lack of knowledge of the
attack, lack of warning, the suddenness of the
assault, the maneuvering of the accused in
such way as not to attract attention till the
very moment of the blow, keeping him
quiescent until the end was accomplished,
constitutes alevosia under subdivision 2 of
article 10 of the Penal Code. This would have
made the crime murder had Keng Kin been
killed.
The court found the defendant guilty of the
crime of attempted murder. We are unable to
agree with that finding. We regard the crime
as frustrated murder. The distinction between
frustrated murder and attempted murder is
this: In frustrated murder the accused
performs all of the acts which he believes
necessary to consummate the crime. Death,
however, fails to follow for causes entirely
apart from his will. In attempted murder the
accused begins the commission of the crime
by overt acts, but involuntarily desists from
performing the other acts from so doing by
some cause outside of his own will. In the
case at bar it appears clearly that the
defendant believed that he had performed all
of the acts necessary to consummate the
crime of murder, and, therefore, of his own
will, desisted from striking further blows. He

believed that he had killed Keng Kin. Death


did not result for reasons entirely apart from
the will of the accused. This surely stamps
the crime as frustrated murder. If, after the
first blow, some one had rushed to the
assistance of Keng Kin and by his efforts had
prevented the accused from proceeding
further in the commission of the crime, the
accused not believing that he had performed
all of the acts necessary to cause death, he
would have been guilty of attempted murder.
The information in his case reads as
follows:jgc:chanrobles.com.ph
"Pursuant to a preliminary investigation
heretofore conducted in the office of the
prosecuting attorney for the city of Manila,
under the provisions of section 39 of Act No.
183 of the United States Philippine
Commission, as amended, the undersigned,
prosecuting attorney of the city of Manila,
gives the court information against Lim San,
Lim Chu, and Que Lat, and accuses the
same, and each of them, of the crime of
attempted assassination, committed as
follows:jgc:chanrobles.com.ph
"That on or about the 18th day of October,
1908, in the city of Manila, Philippine Islands,
the said Lim San, Lim Chu, and Que Lat,
conspiring together, did then and there
willfully, unlawfully, feloniously, with treachery,
deliberate and known premeditation, and n
the nighttime, attempt to kill and assassinate
one Keng Kin, by then and there, in the
nighttime, lying in wait for and assaulting,
cutting, and stabbing the said Keng Kin with
deadly weapons to wit, large bolos and
inflicting then and there upon the head and
body of the said Keng Kin numerous cuts,
wounds, and physical injuries, with intent then
and there to kill and assassinate the said
Keng Kin; that the said accused then and
there performed all of the acts of execution
which should constitute the crime of
assassination, but which did not constitute
said crime by reason of the fact that though
said wounds were intended by the said
accused to cause the death of the said Keng
Kin, and were believed by the said accused
to be sufficient to cause the death of the said
Keng Kin, did not cause his death, by reason
of prompt and efficient medical assistance,
which prevented the said wounds from
becoming fatal.
"All contrary to law."cralaw virtua1aw library
It appears from this pleading that the
prosecuting attorney characterized the crime

in the caption of the information as attempted


assassination. It appears, however, that the
facts set out in the body of the information
describe the crime of frustrated
assassination. Notwithstanding apparent
contradiction between caption and body, we
believe that we ought to say and hold that the
characterization of the crime by the fiscal in
the caption of the information is immaterial
and purposeless, and that the facts states in
the body of the pleading must determine the
crime of which the defendant stands charged
and for which he must be tried. The
establishment of this doctrine is permitted by
the Code of Criminal Procedure, and is
thoroughly in accord with common sense and
with the requirements of plaint justice. We are
aware that such a doctrine departs somewhat
from the established theories of American
criminal jurisprudence; but we are confident
that the result obtained fully justifies our
holding. Many cases might be cited in which
justice has either been greatly delayed or
wholly defeated by adhering to the doctrine
which we discard. Procedure in criminal
actions should always be so framed as to
insure to each criminal that retributive
punishment which ought swiftly and surely to
visit him who willfully and maliciously violates
the penal laws of society. We believe that a
doctrine which does not produce such a
result is illogical and unsound and works
irreparable injury to the community in which it
prevails.
From a legal point of view, and in a very real
sense, it is of no concern to the accused what
is the technical name of the crime of which he
stands charged. It in no way aids him in a
defense on the merits. Whatever its purpose
may be, its result is to enable the accused to
vex the court and embarrass the
administration of justice by setting up the
technical defense that the crime set forth in
the body of the information and proved in the
trial is not the crime characterized by the
fiscal in the caption of the information. That to
which his attention should be directed, and in
which he, above all things else, should be
most interested, are the facts alleged. The
real question is not did he commit a crime
given in the law some technical and specific
name, but did he perform the acts alleged in
the body of the information in the manner
therein set forth. If he did, it is of no
consequence to him, either as a matter of
procedure or of substantive right, how the law
denominates the crime which those acts
constitute. The designation of the crime by
name in the caption of the information from
the facts alleged in the body of that pleading

21

is a conclusion of law made by the fiscal. In


the designation of the crime the accused
never has a real interest until the trial has
ended. For his full and complete defense he
need not know the name of the crime at all. It
is of no consequence whatever for the
protection of his substantial rights. The real
and important question to him is, "Did you
perform the acts alleged in the manner
alleged?" not, "Did you commit a crime
named murder?" If he performed the acts
alleged, in the manner stated, the law
determines what the name of the crime is and
fixes the penalty therefor. It is the province of
the court alone to say what the crime is or
what it is named. If the accused performed
the acts alleged in the manner alleged, then
he ought to be punished and punished
adequately, whatever may be the name of the
crime which those acts constitute.
The plea of not guilty ought always to raise a
question of fact and not of law. The
characterization of the crime is a conclusion
of law on the part of the fiscal. The denial by
the accused that he committed that specific
crime so characterized raises no real
question. No issue can be raised by the
assertion of a conclusion of law by one party
and a denial of such conclusion by the other.
The issues raised by the pleadings in criminal
actions, as well as in civil, are primarily and
really issues of fact and not of law. The issue
to be tried in all criminal cases should be one
of fact, raised by the allegation of certain
facts in the information and a denial of those
facts by the plea of not guilty on the part of
the defendant. There is no more reason why
the defendant should be allowed to take
advantage of a misnomer of the action where
the people are prosecuting than when
assailed civilly by a private individual.
The failure to observe this fundamental
distinction has been one of the causes of the
frequent miscarriage of justice in criminal
cases in many parts of the United States. If a
plaintiff in a civil action should open his
complaint with the statement, "This is an
action of tort," and then proceed to set out
fully facts showing that his action was really
to foreclose a mortgage, asking the remedy
proper to that end, no court would hesitate a
moment as to what was the real nature of the
action. It could not be contended for an
instant that the plaintiff, in order to recover,
would be obliged to prove an action in tort.
The statement, "This is an action in tort," is a
mere conclusion of law and not a statement
of fact. It has no influence whatever upon the
nature of the action. It is pure surplusage. It

can not fairly be said to deceive the


defendant. So far as the procedure or the
merits are concerned, it is of no consequence
what the name of the action may be. Issues
are not made by asserting and denying
names. They are framed by the allegation
and denial of facts. The acts or omissions of
the defendant, as set out by the plaintiff in the
complaint as the basis of his action, are that
to which the defendant looks to prepare his
defense. They are that to which, when
proved, the court looks to apply the remedy.
So it is with pleadings in criminal actions. To
quibble about names is to lose sight of
realities. To permit an accused to stand by
and watch the fiscal while the guesses as to
the name which ought to be applied to the
crime of which he charges the accused, and
then take advantage of the guess if it
happens to be wrong, while the acts or
omissions upon which that guess was made
and which are the real and only foundation of
the charge against him are clearly and fully
stated in the information, is to change the
battle ground in criminal cases from issues to
guesses and from fact to fancy. It changes
lawyers into dialecticians and law into
metaphysics that fertile filed of delusion
propagated by language.
Section 5 of the Code of Criminal Procedure
reads as follows:jgc:chanrobles.com.ph
"An information is an accusation in writing
charging a person with a public offense,
presented and signed by the promoter fiscal
or his deputy and filed with the clerk of the
court."cralaw virtua1aw library
Section 6 is as follows:jgc:chanrobles.com.ph
"A complaint or information is sufficient if it
shows:jgc:chanrobles.com.ph
"1. The name of the defendant, or, if his name
can not be discovered, that he is described
under a fictitious name with a statement that
his true name is unknown to the informant or
official signing the same. His true name may
be inserted at any stage of the proceedings
instituted against him, whenever ascertained.
"2. The designation of the crime or public
offense charged.
"3. The acts or omission complained of as
constituting the crime or public offense in
ordinary and concise language, without
repetition, not necessarily in the words of the
statute, but 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.
"4. That the offense was committed within the
jurisdiction of the court and is triable therein.
"5. The names of the persons against whom,
or against whose property, the offense was
committed, if known."cralaw virtua1aw library
Section 8 reads as
follows:jgc:chanrobles.com.ph
"A complaint or information may be
substantially in the following
form:jgc:chanrobles.com.ph
"The United States against A. B.
"In the Court of _______________ for
___________________, Province of
____________________, the
_____________________ day of
_______________, 19 _____
"A. B. is accused by the undersigned of the
crime of (giving its legal appellation, such as
murder, arson, robbery, or the like, or
designating it as a felony or misdemeanor),
committed as follows:jgc:chanrobles.com.ph
"That said A. B., on the _____________ day
of _______________, 19 ________, at the
________ of ________, Province of
______________, (here set forth the acts or
omissions charged as an offense), contrary to
the statute in such case made and provided.
"(Signed)
____________________________________
"
Subdivision 2, section 6, above quoted,
requires that the information shall contain
"the designation of the crime or public offense
charged." But while that is so and while
section 8 provides that the information may
stated the legal appellation of the crime,
"such as murder, arson, robbery, or the like,"
nevertheless, said section also provides that
such offense may be designated generally
"as a felony or misdemeanor." This evidently
and unquestionably permits an information to
be drawn and framed upon the lines marked
in the doctrine we here lay down. This is the
form in which information should be drawn.
We are aware that it may be said that, when
a fiscal has characterized by name the
offense with which he charges the defendant,

and the defendant has accepted that


characterization in good faith and prepared
his trial in accordance therewith, he ought not
to be required upon appeal or elsewhere to
meet a new or different crime; that such a
proceeding would prejudice him severely and
might be the means of convicting him without
a real hearing, if not without due process of
law. Our reply is, in the first place, that it is
very rare indeed that circumstances would be
presented in which an accused could be any
change be thus prejudiced. Such contingency
is so remote as to be almost negligible. But,
should such a condition arise, we say, in the
second place, that this court will not permit
the doctrine here laid down to prejudice any
defendant who has been innocently misled in
any action heretofore tried. However, after the
lapse of a reasonable time following the
publication of this decision, its contents and
tenor will be presumed to be known to all.
After the doctrine here promulgated is fully
known, no one will be heard to say that he
has been prejudiced by its application. We
reply, in the third place, that the people of the
land are interested more than any single
individual in the punishment of those who
offend against its laws; that the fiscal has no
right to characterize a crime in defiance of the
interests of society; that he has no authority
to speak for the State and say what crime has
been committed. That is the duty of the court
the duty of a coordinate branch of the
government, one of its three departments
to which and to which alone the sovereignty
has delegated the right to denominate crime
from facts alleged or proved and to impose
punishment in accordance with that
denomination. The duty of the fiscal in
framing an information is limited to a
statement of the facts which the accused has
performed and the manner in which he
performed them. It is no part of his duties to
give a technical name to the crime which is
born of the facts set forth, or draw an
inference or conclusion as to how the courts
will or will not denominate the crime
described by the facts. If the fiscal
denominate or characterize the crime and if
that denomination binds the court, as it
always does under the doctrine were are
criticizing, then it is clear that the fiscal has,
by such act, usurped the function of the court,
inasmuch as he has thereby irrevocably
decided by his own fiat of what crime, if any,
the defendant shall be convicted. This is not
only performing duties ministerial, but
legislative and judicial as well. He thus not
only tries the case as fiscal, but he also, by
his mischaracterization, changes the law
really applicable to the case. Moreover, such

22

mischaracterization being binding on the


courts, he also thereby in a sense adjudicates
the offense for which the defendant shall be
punished. He thus leaves little for the court to
do but apply the penalty. Even that must be in
accordance with the fiscals characterization.
We would say, fourthly, that a careful lawyer
ought always to prepare the defense of his
client to meet every allegation of material fact
presented by the peoples pleading, and to
deny, and to substantiate that denial by proof,
every such fact which is alleged and proved
to his prejudice, and that wholly irrespective
of the characterization of the crime by the
fiscal. It is undoubted that every innocent
man can and will do that. No innocent man
will permit himself to rest under proof that he
has been guilty of a malicious and criminal
act against the law of the land. He desires
above all things to disprove, and will always
insist upon disproving, everything presented
by the prosecution which smirches his
character or taints his honor. Generally
speaking, it is only the criminal, either by act
or intention, who is willing to rest his defense
upon the technicality of a characterization,
leaving the main facts proved against him
untouched and the conclusions from them
unreduced. Every innocent man wants to
meet facts and not theories. He wants to
strike at the substance of fact and not the
straw man of conclusion. He will insist on
meeting the thing and not the characterization
of the thing.
Moreover, one can not claim to be prejudiced
who voluntarily and willfully shuts his eyes to
the facts alleged. Why are the facts alleged at
all if not to specify the real nature of the
crime? If the accused looks to the
characterization of the fiscal and not to the
facts, why have facts at all; why not have the
information state conclusions only? But it will
be observed that if we should urge that
proposition, the accused would be he who
would first object. His instant reply would be,
"I want facts and not conclusions. I can
prepare no defense against the allegation of
mere conclusions." Nevertheless he insists
on holding the people strictly to the pure
conclusion involved in the fiscals
characterization of the crime. In other words,
he wants conclusions if the facts hurt him,
and he wants facts if the conclusions hurt
him. A technicality is something which makes
a criminal life worth living. This is here fully
exemplified.
We are not forgetful, in what we have said, of
those sacred and immutable rights which
belong to every freeman. We do not forget,

either, that institutions and states which do


not sacredly protect and guard those rights
can not live. To their protection every man is
willing to dedicate his life, his fortune, and his
honor. The doctrine here laid down conserves
those rights swiftly and perfectly far more
so than does the doctrine we are criticizing.
On the other hand and in addition, it protects
society from the malicious activities of those
who are ever ready to commit crime if there
exists in the law anywhere a technicality upon
which the may rest a hope of escape.
For these reasons it is competent for this
court to find the defendant guilty of the crime
described by the facts stated in the
information, these facts being fully and
satisfactorily proved and the accused having
in no wise been prejudiced.
Under article 407 of the Penal Code the
defendant should be punished with a penalty
lower by one degree than that which would
have been applied had he consummated the
crime. The penalty for the consummated
crime ranges from cadena temporal in its
maximum degree to death. The penalty lower
by one degree is from presidio correccional in
its maximum degree to presidio mayor in its
medium degree. There being present the
aggravating circumstance of nocturnity, the
penalty must be imposed in its maximum
degree.
The judgment of the court below is, therefore,
reversed, and the defendant is convicted of
the crime of frustrated murder and sentenced
to eight years and day of presidio mayor and
to pay one-third of the costs. There being no
evidence in the case of the damages which
Keng Kin has suffered by reason of the acts
complained of, no indemnity can be required
paid in this action.
[G.R. No. 33463. December 18, 1930.]
THE PEOPLE OF THE PHILIPPINE
ISLANDS, Plaintiff-Appellee, v. BASILIO
BORINAGA,Defendant-Appellant.
SYLLABUS
1. CRIMINAL LAW; FRUSTRATED MURDER
OR ATTEMPTED MURDER. While M one
evening was seated on a chair in a provincial
store, with his back towards the window, B
from the window struck with a knife at M, but
the knife lodged in the back of the chair on
which M was seated, causing M to fall from
the chair, but not injuring him. The attendant
circumstances established that murder was in
the heart and mind of the aggressor. Held:

That within the meaning of article 3 of the


Penal Code, the crime committed was
frustrated murder and not attempted murder.
2. ID.; ID. The author performed all the
acts of execution. 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.
MALCOLM, 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 Mooneys 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,
inasmuch as he had not yet taken his
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 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 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, out 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
paint of the knife was subsequent, on
examination of the chair, found imbedded 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

23

perpetrator. The assailant voluntarily desisted


from further acts. What is known as the
subjective phase of the criminal act was
passed. (U. S. v. Eduave [1917], 36 Phil.,
209; People v. Mabugat [1926], 51 Phil.,
967.)
No superfine distinctions need be drawn in
favor of the 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 the foregoing considerations, the
judgment appealed from will be affirmed, with
the costs of this instance against
the Appellant.
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:jgc:chanrobles.com.ph
"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 not produce it by
reason of causes independent of the will of
the perpetrator.
"There is an attempt when the offender
commences the commission of 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."cralaw virtua1aw library
The pertinent facts as found by the court,
below and by this court are the
following:chanrob1es virtual 1aw library
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 imbedded in it.
Since the fact 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 a 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 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 consideration 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.
[G.R. Nos. 23112-23114. March 17, 1925. ]
THE PEOPLE OF THE PHILIPPINE
ISLANDS, Plaintiff-Appellee, v. MAXIMO
REYES,Defendant-Appellant.
SYLLABUS
1. WITNESSES; CREDIBILITY;
SUBSTANTIAL CONTRADICTIONS.
Where the principal witness for the defense
has made a substantial contradictions, the
trial court, having seen the witnesses testify,
commits no error in no giving any credit to the
witnesses for the defense.
2. FRUSTRATED HOMICIDE; TREACHERY.
Where the accused has attacked the
offended party unexpectedly, and the wounds
inflicted by him upon the latter would have
caused death had not the weapon whereby
the same were inflicted met with an obstacle,
such as the ribs, which prevented its
penetrating the lungs and kidneys, the
defendant is guilty of frustrated murder.

VILLAMOR, J. :
On the night of November 5, 1923, in the
barrio of Santa Clara, municipality of Santo
Tomas, Province of Batangas, the accused
attacked Maria Jaurigue, Higino Mayuga and
Antonio Mercado with a bolo, inflicting several
wounds on different parts of the body of
Maria Jaurigue, three of which a were
necessarily mortal, according to medical
opinion, and caused her death five days after
the event, on account of certain
complications. Higino Mayuga also received
wounds which healed after one month, and
Antonio Mercado was wounded on the back,
the breast and on one side, his wounds
having been serious, and, according to the
testimony of the physician who made the
autopsy, two of said wounds, those on the
back and the side, would have caused his
death had not the weapon met with an
obstacle, namely, the ribs, which presented it
from reaching the lungs and kidneys.
The accused was prosecuted separately for
the death of Maria Jaurigue and the wounds
inflicted upon Higino Mayuga and Antonio
Mercado. The three cases were tried jointly
by agreement of the parties approved by the
court, and the trial court rendered separate
judgments finding the accused guilty of the
crime of homicide with the aggravating
circumstance of nocturnity for the death of
Maria Jaurigue, and sentencing him to
seventeen years, four months, and one day
of reclusion temporal, with the accessories
provided by the law, to indemnify the heirs of
Maria Jaurigue in the sum of P1,000, and to
pay the costs of the action, crediting him with
the imprisonment suffered by him as
detention prisoner. For the wounds of Higino
Mayuga the trial court found the accused
guilty of the crime of lesiones graves, without
any modifying circumstances, and sentenced
him to one year and eight months of prision
correcional, with the accessories provided by
the law, to indemnify the offended party
Higino Mayuga in the sum of P200, to suffer,
in case of insolvency, the corresponding
subsidiary imprisonment, and to pay the costs
of the action; and for the wounds of Antonio
Mercado, the trial court found the accused
guilty of the crime of frustrated homicide, with
the aggravating circumstance of nocturnity,
and sentenced him to ten years and one day
of prision mayor, with the accessories
provided by the law, to indemnify the
offended party, Antonio Mercado, in the sum
of P530 and to pay the costs of the action, it
being understood that the accused shall
serve the penalties imposed upon him

24

successively in the order of their relative


gravity.
The defense argues that the trial court erred
in not giving credit to the declarations of the
witnesses for the defense.
We have examined the record before us, and
find that the evidence shows beyond a
reasonable doubt that the accused is guilty of
the three crimes he is charged with. The
accused was a suitor of one Maria
Encarnacion Jaurigue, niece of the deceased
Maria Jaurigue, and believing himself
rejected by the spouses Antonio Mercado and
Maria Jaurigue, in whose house the girl was
living, he decided on the night in question to
do away with them, which he did as follows:
Said spouses Antonio Mercado and Maria
Jaurigue were then working in the camarin
(shed) of Higino Mayuga, engaged in the
drying of coconuts for the manufacture of
copra. The deceased was near a furnace
where there was a lamp, while Antonio was
about 15 brazas from her, seated upon his
heels, gathering coconut shells and putting
them in a sack. Suddenly Antonio was
attacked with a bolo while he was with his
back toward the aggressor, and received the
wounds above-mentioned, having spent P450
for medical assistance and P80 for medicines
to cure them. This offended party distinctly
identified his aggressor as Maximo Reyes,
because there was a lamp in the place, with
which Antonio illuminated the coconut shells
that he was gathering. And due to his
wounds, he fell to the ground unconscious.
Higino Mayuga, the owner of the camarin,
upon hearing the cries of Maria, who was
about 15 meters from his house, ran
immediately to see what was happening, and
there he met Maximo Reyes, who also
assaulted him, wounding him near the
stomach and on the forearm, and fleeing
away thereafter.

their homes, just as the accused Maximo


Reyes did, having seen near the camarin a
person who was running and whom they did
not recognize, but supposed he was the
author of the crime in question.
The trial court gave no credit to the testimony
of the witnesses for the defense, and we are
of the opinion that this is no error. The
testimony of the witnesses of the accused
seems to us so improbable that we cannot
see how it can be believed without ignoring
the rules of sound judging. His Honor, the trial
judge, who saw and heard these witnesses,
says that their testimony had been studied by
heart an we add that they had not learned the
lesson well, for we find in the testimony of the
principal witness Bonifacio Landicho several
substantial contradictions which entirely
discredit him. We hold that the testimony of
the witnesses for the defense in the instant
case is worthless, as compared with the
declarations of the witnesses for the
prosecution.
The Attorney-General observes that the
accused must be held guilty of the crime of
frustrated murder for the wounds inflicted
upon Antonio Mercado, in view of the
treacherous manner in which said offended
party was assaulted by the accused, and
recommends that the judgment appealed
from be modified so that the maximum
degree of the penalty be imposed upon the
accused, which is from presidio mayor in its
maximum degree to cadena temporal in its
medium degree, that is to say, fourteen years,
eight months, and one day of cadena
temporal, with the accessories provided by
the law.
As thus modified, the judgment appealed
from must be as is hereby, affirmed with the
costs against the appellant So ordered.
[G.R. No. L-5848. April 30, 1954.]

Higino Mayuga was incapacitated to walk on


his hacienda for more than one month, and
spent P200 for medical attendance and
medicines.

THE PEOPLE OF THE


PHILIPPINES, Plaintiff-Appellee, v. SY PIO,
alias POLICARPIO DE LA
CRUZ, Defendant-Appellant.

The testimony of these witnesses was


corroborated by Francisco Reyes and
Aquilino Belleza.

SYLLABUS

The defense presented two witnesses by the


names of Bonifacio Landicho and Andres
Mendoza who in substance testified that on
that night, due to the disturbance aroused by
the wounding of the three persons, they left

1. CRIMINAL LAW; COMPLEX CRIMES;


DISTINCT AND SEPARATE ACTS
PRODUCE DIFFERENT CRIMES.

According to the uncontradicted testimony of


the offended party, when the latter saw
defendant firing shots, he asked him why he
was doing so, and the defendant, instead of
answering him, turned around and fired at
him also. It is not true, therefore, that the
victim received the shot accidentally from the
same bullet that had been fired at another
person.
2. ID.; EVIDENCE SUFFICIENT TO
SUSTAIN JUDGMENT OF CONVICTION.
Where the admissions made by the
defendant at the time of trial regarding the
incidents, as well as the cause of his having
assaulted his victims coincide exactly with the
reasons given in his written confession, which
he himself could have known, the claim that
the offense has not been proved beyond
reasonable doubt must be dismissed.
3. ID.; ATTEMPTED MURDER; REQUISITE.
In the case at bar, the defendant fired at
his victim, and the latter was hit, but he was
able to escape and hide in another room. The
fact that he was able to escape, which
defendant must have seen, must have
produced in his mind that he was not able to
hit his victim at a vital part of the body. In
other words, he knew that he had not actually
performed all the acts of execution necessary
to kill his victim. Under these circumstances,
it can not be said that the subjective phase of
the acts of execution had been completed.
Hence, he is guilty of attempted murder.
LABRADOR, J.:
This is an appeal from a judgment of the
Court of First Instance of Manila finding the
defendant-appellant herein Sy Pio, alias
Policarpio de la Cruz, guilty of frustrated
murder against the person of Tan Siong Kiap,
and sentencing him to suffer an indeterminate
sentence of 6 years, 1 month, and 11 days of
prisin mayor, to 14 years, 8 months, and 1
day of reclusin temporal, to indemnify the
offended party Tan Siong Kiap in the sum of
P350, without subsidiary imprisonment in
case of insolvency, and to pay the costs. The
case was appealed to the Court of Appeals,
but that court certified it to this Court under
the provisions of section 17 (4) of Republic
Act No. 296, on the ground that the crime
charged was committed on the same
occasion that the defendant-appellant had
committed crime of murder, with which the
defendant-appellant was also charged.
The evidence for the prosecution shows that
early in the morning of September 3, 1949,

the defendant-appellant entered the store at


511 Misericordia, Sta. Cruz, Manila. Once
inside he started firing a .45 caliber pistol that
he had in his hand. The first one shot was
Jose Sy. Tan Siong Kiap, who was in the
store and saw the accused enter and
afterwards fire a shot at Jose Sy, asked the
defendant-appellant, "What is the idea?"
Thereupon defendant-appellant turned
around and fired at him also. The bullet fired
from defendant-appellants pistol entered the
right shoulder of Tan Siong Kiap and passed
through his back. Upon being hit, Tan Siong
Kiap immediately ran to a room behind the
store to hide. From there he still heard
gunshots fired from defendant-appellants
pistol, but afterwards defendant-appellant ran
away.
Tan Siong Kiap was brought to the Chinese
General Hospital, where his wound was
treated. He stayed there on September 3 to
September 12, 1949, when he was released
upon his request and against the physicians
advice. He was asked to return to the hospital
for further treatment, and he did so five times
for a period of more than ten days. Thereafter
his wound was completely healed. He spent
the sum of P300 for hospital and doctors
fees. The defendant-appellant shot two other
persons in the morning of September 3,
1949, before shooting and wounding Tan
Siong Kiap; one was Ong Pian and the other
Jose Sy. On September 5 information was
received by the Manila Police Department
that defendant-appellant was in the custody
of the Constabulary in Tarlac, so a captain of
the Manila police by the name of Daniel V.
Lomotan proceeded to Tarlac. There he saw
the defendant-appellant and had a
conversation with him. On this occasion
defendant-appellant admitted to Lomotan that
his victims were Tan Siong Kiap, Ong Pian,
and Jose Sy. The Constabulary in Tarlac also
delivered to Lomotan the pistol used by the
defendant- appellant, marked Exhibit C, and
its magazine, Exhibit C-1, both of which the
Constabulary had confiscated from the
defendant-appellant.
The defendant-appellant was thereupon
delivered to the custody of Lomotan, and the
latter brought him to Manila, where his
statement was taken down in writing. This
declaration was submitted at the time of the
trial as Exhibit D, and it contains all the
details of the assaults that defendantappellant had made in Manila in the morning
of September 3 against the persons of Tan
Siong Kiap, Ong Pian, and Jose Sy. This
written statement was taken down on a

25

typewriter and afterwards signed by the


defendant-appellant in both his Chinese and
Filipino names, the latter being Policarpio de
la Cruz.
According to the declaration of the defendantappellant, some months prior to September 3,
1949, he was employed as an attendant in a
restaurant belonging to Ong Pian. Defendantappellants wife by the name of Vicenta was
also employed by Ong Pians partner, Eng
Cheng Suy. Prior to September 3 the
relatives of his wife had been asking the latter
for help, because her father was sick.
Defendant-appellant asked money from Ong
Pian, but the latter could only give him P1.
His wife was able to borrow P20 from her
employer, and this was sent to his wifes
parents in Cebu. Afterwards defendantappellant was dismissed from his work at the
restaurant of Ong Pian, and he became a
peddler. Ong Pian presented a list of the
sums that defendant- appellant had borrowed
from him, and these sums were deducted
from the salary of his wife. Defendantappellant did not recognize these sums as his
indebtedness, and so he resented Ong Pians
conduct.
As to Tan Siong Kiap, the confession states
that a few days before September 3,
1949, Defendant-Appellant had been able to
realize the sum of P70 from the sales of
medicine that he peddled. He laid this money
in a place in his room, but the following
morning he found that it had disappeared
from the place in which he had placed it. Tan
Siong Kiap and Jose Sy, upon the discovery
of the loss of the money, told defendantappellant that he must have given the money
to his wife, and that nobody had stolen it.
After this incident of the loss, the defendantappellant used to hear Tan Siong Kiap and
Jose Sy and other Chinamen say that the
money had not been actually stolen, but that
he lost it in gambling. Because of these
accusations against him, he nurtured
resentment against both Tan Siong Kiap and
Jose Sy.
So early in the morning of September 3, while
a Chinaman by the name of Ngo Cho, who
was the possessor of a caliber .45 pistol, was
away from his room, Defendant-Appellant got
his pistol and tucked it in his belt. With this
pistol he went to the restaurant at 822
Ongpin, and there shot Ong Pian. After
shooting him, he proceeded to 511
Misericordia, in the store where Jose Sy and
Tan Siong Kiap were, and there he fired at
them. Then he escaped to Legarda street, in

Sampaloc, where he borrowed P1 from his


relatives. From there he went to Malabon, to
the house of his mother, to whom he told he
had killed two. persons and from whom he
asked money.
The foregoing is the substance of the written
declaration made by the defendant-appellant
in Exhibit D on September 6, 1949. At the
time of the trial, however, he disowned the
confession and explained that he signed it
without having read its contents. He declared
that it was not he who shot the three victims,
but it was one by the name of Chua Tone,
with whom he had previously connived to kill
the three victims. He introduced no
witnesses, however, to support his denial.
Neither did he deny that he admitted before
Captain Lomotan having killed the three
persons, or having been found in Tarlac in
possession of the caliber .45 pistol, Exhibit C,
and its magazine, Exhibit C-1. In his crossexamination he admitted many of the
incidents mentioned in the confession,
especially the cause of his resentment
against his victims Ong Pian, Jose Sy, and
Tan Siong Kiap.
The trial court refused to believe his
testimony, and, therefore, found him guilty of
the crime charged.
On this appeal counsel for the defendantappellant claims that the trial court erred in
not finding that Tan Siong Kiap received the
shot accidentally from the same bullet that
had been fired at Jose Sy, and in finding that
defendant-appellant has committed a crime
distinct and separate from that of murder for
the slaying of Jose Sy. We find no merit in
this contention. According to the
uncontradicted testimony of the offended
party Tan Siong Kiap, when the latter saw
defendant- appellant firing shots, he asked
him why he was doing so, and the defendantappellant, instead of answering him, turned
around and fired at him also. It is not true,
therefore, that the shot which hit him was
fired at Sy.
It is also contended that the evidence is not
sufficient to sustain the judgment of
conviction. We also find no merit in this
contention. The evidence submitted to prove
the charge consists of: the uncontradicted
testimony of the victim himself; the
admissions made verbally by the defendantappellant before Captain Lomotan in Tarlac;
the fact that the defendant-appellant had
escaped and was found in Tarlac; his
possession of the .45 caliber pistol coupled

with the fact, attested to by the testimony of


the physician who examined and treated the
wounds of Tan Siong Kiap, that the wounds
found in his person must have been caused
by the caliber .45 bullet; and, lastly, the
confession of the defendant-appellant
himself, Exhibit D, which he was not able to
impugn. As against this mass of evidence,
defendant- appellant has only made a very
unbelievable story that it was not he but
another that had committed the crime
charged. His admissions at the time of the
trial regarding the incidents, as well as the
cause of his having assaulted his victims,
coincide exactly with the reasons given in his
written confession. This shows that he had
made the confession himself, for nobody but
himself could have known the facts therein
stated. The claim that the offense has not
been proved beyond reasonable doubt must
be dismissed.
The defendant-appellant lastly claims that the
lower court also erred in sentencing him to
pay an indemnity of P350. The offended party
testified that he actually spent P300 for
hospital and doctors fees, and that he was
confined in the hospital for nine days. The
above facts stand uncontradicted. This
assignment of error must also be dismissed.
It is lastly contended that the defendantappellant should be found guilty only of less
serious physical injuries instead of the crime
of frustrated murder as defendant-appellant
admitted in his confession in the open court
that he had a grudge against the offended
party, and that he connived with another to kill
the latter. The intent to kill is also evident from
his conduct in firing the shot directly at the
body of the offended party.
But while the intent to kill is conclusively
proved the wound inflicted was not
necessarily fatal, because it did not touch any
of the vital organs of the body. As a matter of
fact, the medical certification issued by the
physician who examined the wound of the
offended party at the time he went to the
hospital, states that the wound was to heal
within a period of fourteen days, while the
offended party actually stayed in the hospital
for nine days and continued receiving
treatment thereafter five times for a period of
more than ten days, or a total of not more
than thirty days. The question that needs to
be determined, therefore, is: Did the
defendant-appellant perform all the acts of
execution necessary to produce the death of
his victim?

In the cases of U.S. v. Eduave, 36 Phil., 209,


People v. Dagman, 47 Phil., 768, and People
v. Borinaga, 55 Phil., 433, this Court has held
that it is not necessary that the accused
actually commit all the acts of execution
necessary to produce the death of his victim,
but that it is sufficient that he believes that he
has committed all said acts. In the case of
People v. Dagman, supra, the victim was first
knocked down by a stone thrown at him, then
attacked with a lance, and then wounded by
bolos and clubs wielded by the accused, but
the victim upon falling down feigned death,
and the accused desisted from further
continuing in the assault in the belief that their
victim was dead. And in the case of People v.
Borinaga, supra, the accused stabbed his
intended victim, but the knife with which he
committed the aggression instead of hitting
the body of the victim, lodged in the back of
the chair in which he was seated, although
the accused believed that he had already
harmed him. In both these cases this Court
held that the crime committed was that of
frustrated murder, because the subjective
phase of the acts necessary to commit the
offense had already passed; there was a full
and complete belief on the part of the
assailant that he had committed all the acts of
execution necessary to produce the death of
the intended victim.
In the case at bar, however, the defendantappellant fired at his victim, and the latter was
hit, but he was able to escape and hide in
another room. The fact that he was able to
escape, which appellant must have seen,
must have produced in the mind of the
defendant- appellant that he was not able to
hit his victim at a vital part of the body. In
other words, the defendant-appellant knew
that he had not actually performed all the acts
of execution necessary to kill his victim.
Under these circumstances, it can not be said
that the subjective phase of the acts of
execution had been completed. And as it
does not appear that the defendant-appellant
continued in the pursuit, and, as a matter of
fact, he ran away afterwards a reasonable
doubt exists in our mind that the defendantappellant had actually believed that he had
committed all the acts of execution or passed
the subjective phase of the said acts. This
doubt must be resolved in favor of the
defendant-appellant.
We are, therefore, not prepared to find the
defendant-appellant guilty of frustrated
murder, as charged in the information. We
only find him guilty of attempted murder,
because he did not perform all the acts of

26

execution, actual and subjective, in order that


the purpose and intention that he had to kill
his victim might be carried out.
Therefore, the judgment appealed from
should be, as it is hereby, modified, and the
defendant-appellant is found guilty of the
crime of attempted murder, and the sentence
imposed upon him reduced to an
indeterminate penalty of from 4 years, 2
months, and 1 day of prisin correccional, to
10 years of prisin mayor. In all other
respects the judgment is affirmed. With costs
against the defendant-appellant.
THE PEOPLE OF THE PHILIPPINES,
plaintiff and appellee vs. ROGACIANO
CUEVAS, def endant and appellant.
Appeal from a decision of the Court of First
Instance of Batangas. In Criminal Case No.
28, the trial court convicted Rogaciano
Cuevas of the crime of murder and sentenced
him to an indeterminate penalty of 17 years
and 4 months of reclusion temporal to
reclusion perpetua, and to pay indemnity to
the offended party. In Criminal Case No. 29,
in which Cuevas was charged with frustrated
murder, he was convicted of attempted
murder and sentenced to an indeterminate
penalty ranging from 4 years and 2 months of
prison correcional to 6 years, 1 month and 11
days of prision mayor. Held: The crime
committed, in connection with Criminal Case
No. 28 (L-5844), is murder, qualified by
treachery. No modifying circumstances
having attended the commission of the
offense, the penalty for murder should be
imposed in its medium period, namely, life
imprisonment, without the benefit of the
Indeterminate Sentence Law, which is not
applicable to this case. As regards Criminal
Case No. 29 (L-5845), it having been
established that appellant had performed all
the acts of execution necessary to kill, and
yet did not produce the desired result, the
crime committed is frustrated murder. Hence,
appellant should be sentenced to an
indeterminate penalty ranging from 4 years, 2
months and 1 day of prision correccional to
12 years and 1 day of reclusin temporal.
Modified as to the penalty in both cases, the
decision is affirmed in all other respects.
[People vs. Cuevas, 97 Phil. 963(1955)]
THE UNITED STATES, complainant and
appellee, vs. ALEJANDRO GONZALEZ (alias
DANDO) ET AL., defendants and appellants.
CRIMINAL PROCEDURE; QUALIFYING
CIRCUMSTANCE; CRIMINAL INTENTION.

Intention is the essential element of the crime


and it is revealed in the acts themselves, and
must be considered from a rational criterion in
each case, taking into consideration the
appearance, transcendency, and character of
the acts punishable in themselves and
susceptible of different or several meanings.
APPEAL from a judgment of the Court of First
Instance of Manila.
The facts are stated in the opinion of the
court..
TORRES, J.:
In a complaint dated September 29, 1903,
filed by one of the assistant prosecuting
attorneys for the city of Manila, Alejandro
Gonzalez and Genaro Atienza were charged
with the crime of attempted robbery. The
complaint stated that these individuals on the
previous day entered a house at No. 105
Calle Echague where the Chinaman Sy Poco
lived. For this purpose they made an opening
in the exterior wall of the building with the
intention of committing the robbery of 1,000
pesos which were in said house, although
they did not consummate the crime for a
cause or accident other than their own
voluntary desistance, all contrary to law.
The case having come on for trial, the court,
in view of the result of the proof s, declared
the defendants guilty of the crime of
attempted robbery and sentenced each of
them to the penalty of two years of presidio
correccional with the accessories and to pay
the costs pro rata. From this judgment the
defendants appealed.
From the evidence adduced during the trial it
appears that between 3 and 4 o'clock on the
morning of September 28, 1903, Alejandro
Gonzalez and Genaro Atienza, together with
two unknown men, entered the house No.
105 Calle Echague, district of Quiapo,
inhabited by the Chinaman Sy Poco and
others. They did this at a time when the
inhabitants of the house were asleep. To
accomplish their purpose they made an
opening in the partition wall of said house
between said house and the next one, No.
103, tearing away some of the boards, and
through this opening they entered the former.
The inhabitants of the house awoke and one
of them, Sy Poco, asked the defendants what
they wanted, and at that moment Gonzalez
attacked said Sy Poco, wounding him with a
poniard in the right arm, after which the
malefactors fled, two of them jumping through
a window which opened on the back yard of

the house, and the other two came down the


stairway, leaving through the door of the
house. It appears likewise that when the two
defendants were arrested, in the immediate
vicinity of the house, they were identified by
Sy Poco as being two of the four individuals
who entered his house; at the same time
another Chinaman, Sy Sing, the companion
of the former, identified them as two of the
four men who entered the house, and stated
that Genaro Atienza was the one who
covered his face with a mosquito netting
which was on the bed. Sy Poco stated that he
had in his room in a trunk the sum of 1,000
pesos, the proceeds of a sale of rice.
These facts being perfectly proven in this
case, they are clothed with all the
characteristics of the crime of attempted
robbery provided for and punished in article
508, paragraph 3, together with article 66 of
the Penal Code, inasmuch as the defendants
entered the house by means of scaling and
breaking the wall, passing through the
opening which was not the proper and
ordinary entrance to said house, thus making
a beginning in the execution of said robbery
by overt acts and if they did not continue in
the realization of their criminal purpose to a
complete consummation of the crime it was
because the inhabitants of the house awoke
and they were af raid of being surprised by
the authorities, and not because of their own
voluntary desistance. They did not succeed in
opening the trunk which contained the
money, nor even approach said article of
furniture, but all the acts which they
performed from the moment they scaled the
house, made the opening, and entered
through same tended to the consummation of
the crime which they had intended to commit.
Intention is the essential element of the crime
and it is revealed in the acts themselves, and
must be considered from a rational criterion in
each case, taking into consideration the
appearance, transcendency, and character of
the acts punishable in themselves and
susceptible of different or several meanings.
This is in accordance with the existing
doctrine established by the supreme court of
Spain in judgments of October 6, 1871, May
14, 1883, and December 16, 1887.
It is undeniable that the two defendants are
guilty as proven principals and clearly
convicted, together with other unknown men,
of the said crime of attempted robbery. They
were arrested near the raided house at a very
late hour on the night in question, and just a
few moments after the robbery had been
attempted, with their trousers soiled with mud

on account of their having stumbled against


some sugar jars covered with mud when they
jumped through from the porch of the house.
They were identified by the two Chinamen
who lived in the same house. One of the
Chinamen, Sy Poco, was wounded in the arm
by the defendant Alejandro Gonzalez. The
defendants were unable to justify their
defense; their testimony is not worthy of
credit because, if they lived in Binondo and
Tondo and came from work in the bay, it can
not be understood how they were arrested on
Calle Echague, Quiapo. They themselves, in
spite of having pleaded not guilty, could not
explain their presence in that vicinity; they
could have landed at the Bridge of Spain, or if
they came up as far as the Santa Cruz Bridge
they would have landed at Plaza de Goiti, if
we give any faith at all to their story of
returning to their houses, which were situated
one on Calle Reina Regente and the other in
Bancusay.
In the commission of the said crime we must
take into consideration the concurrence of the
aggravating circumstance of nocturnity,
without any extenuating one, and f or this
reason the penalty two degrees below that of
presidio correccional in its medium degree to
presidio mayor in its minimum degree, or, in
other words, the fine imposed as correccional
in its minimum degree to that of arresto
mayor must be imposed on the defendants in
its maximum degree, and therefore, by virtue
of the reasons above stated, we believe that
with the reversal of the judgment appealed
from. the defendants, Alejandro Gonzales
and Genaro Atienza, are sentenced to two
months' arresto mayor with the accessories
and to pay the costs in both instances,
onehalf each.
The court is instructed to proceed in
accordance with the law should any
complaint for lesiones of the Chinaman Sy
Poco be presented. This case to be returned
to the court of origin, with a certified copy of
this decision and of the judgment which shall
be rendered in accordance herewith. So
ordered.
Arellano, C. J., Mapa, Johnson, and Carson,
JJ., concur.
Judgment modified.
[United States vs. Gonzalez, 4 Phil.,
414(1905)]
[No. 26298. January 20, 1927]
THE-PEOPLE OF THE PHILIPPINE
ISLANDS, paintiff and appellee, vs.

27

JULIAN ERIIA Y VINOLLA, defendant and


appellant.
CRIMINAL LAW; RAPE OF A CHILD.The
crime of rape may be committed upon a child
of the age of 3 years and 11 months.
APPEAL from a judgment of the Court of First
Instance of Manila. Diaz, J.
The facts are stated in the opinion of the
court.
OSTRAND, J.:
This is an appeal from a judgment of the
Court of First Instance of Manila finding the
def endant guilty of the crime of
consummated rape and sentencing him to
suffer seventeen years, four months and one
day of reclusin 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 Kenney 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 the 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 of rape.

2. ID. ; ID.The decisions of the supreme


court of Spain of October 14, 1898,
December 1, 1897, and June 13,1882, cited
and approved.

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.

APPEAL from a judgment of the Court of First


Instance of Manila. V. del Rosario, J.
The facts are stated in the opinion of the
court.
Victoriano Yamzon for appellant.
Attorney-General Paredes for appellee.
MALCOLM, J.:

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 prisin
mayor, with the accessory penalties
prescribed by law, and with the costs in both
instances. So ordered.
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 of Kenney vs. State (65 L. R.
A., 316), cited in the majority decision. In the
Kenney 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.
Judgment modified.
[People vs. Eria, 50 Phil. 998(1927)]
THE UNITED STATES, plaintiff and
appellee, vs. TOMAS ADIAO, defendant
and appellant.
1. THEFT; WHEN CONSUMMATED OR
FRUSTRATED.One A., a Customs'
inspector, abstracted a leather belt valued at
eighty centavos from the baggage of a
Japanese and secreted the belt in his desk in
the Custom House, where it was found by
other Customs employees. Held: That since
the offender had performed all of the acts of
execution necessary for the accomplishment
of the felony, he is guilty of the consummated
crime of theft.

The defendant was charged in the Municipal


Court of the city of Manila with the crime of
theft. He was found guilty of the lesser crime
of frustrated theft. He appealed to the Court
of First Instance of the city of Manila and
again he was found guilty of the crime of
frustrated theft, and was sentenced to pay a
fine of P100, with subsidiary imprisonment in
case of insolvency, and to pay the costs.
The sole error assigned on appeal is that the
lower court erred in holding that the
defendant was guilty of the crime of theft as
disclosed by the facts appearing of record.
We have examined the evidence carefully
and from our study are unable to say that the
proof is contrary to the findings of the lower
court. Stated in one sentence, the defendant,
Tomas Adiao, a customs inspector,
abstracted a leather belt valued at fK).80,
from the baggage of a Japanese named T.
Murakami, and secreted the belt in his desk
in the Custom House, where it was found by
other customs employees.
Based on these facts, the Court is of the
opinion that the crime can not properly be
classified as frustrated, as this word is
defined in article 3 of the Penal Code, but that
since the offender performed all of the acts of
execution necessary for the accomplishment
of the felony, he is guilty of the consummated
crime of theft. The fact that the defendant
was under observation during the entire
transaction and that he was unable to get the
merchandise out of the Custom House, is not
decisive; all the elements of the completed
crime of theft are present. The following
decisions of the supreme court of Spain are
in point:
"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: "* * *. The
trial court did not err * * * 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 cntimos, 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: "*
*
*' The accused *
*
* 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.)
There exists the aggravating circumstance
that advantage was taken by the offender of
his public position. Wherefore, in view of the
provisions of articles 517 and 518, No. 5, of
the Penal Code, and there being present one
aggravating circumstance compensated by
no mitigating circumstance, the penalty must
be imposed in the maximum degree.

28

Judgment is reversed and the defendant and


appellant is sentenced to three months and
one day of arresto mayor, with the costs of all
instances against him. The merchandise in
question, attached to the record as Exhibit A,
shall be returned to the lawful owner, T.
Murakami. So ordered.
Judgment reversed, penalty increased.
[United States vs. Adiao., 38 Phil. 754(1918)]
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff and appellee, vs.
PEDRO SORIANO Y SISON, defendant and
appellant.
CRIMINAL LAW; HABITUAL DELINQUENT
ACT; CONSTITUTIONALITY AND VALIDITY
OF.The Habitual Delinquent Act, No. 3586
of the Philippine Legislature, amending Act
No. 3397, is of modern origin and tends
towards the reform of culprits who have
evinced obstinacy in crime. The scheme is to
punish the offense last perpetrated taking the
preceding convictions into account, but only
to impose a more severe penalty. The culprit
is not punished for the felonies committed
before, which he has already expiated, but for
the crime or violation of law again committed,
although in imposing the penalty, the habitual
quality and felonious tendency of his conduct
is taken into consideration. The additional
penalties are applied equally to all who are in
the same condition. Therefore, the law is not
unconstitutional or null and void because ex
post facto, or discriminatory, or because it
places the defendant twice in jeopardy for the
same offense. (People vs. Sierra, G. R. No.
28516 April 21, 1928, not reported; People
vs. Madrano, 53 Phil., 860; People vs.
Montera, 55 Phil., 933.)
APPEAL from a judgment of the Court of First
Instance of Manila. Vickers, J.
The facts are stated in the opinion of the
court.
IMPERIAL, J.:

valued at P15 belonging to Antonio Borja,


thus performing all the acts of execution
which should produce the crime of theft as a
consequence, but which, nevertheless, did
not produce it by reason of causes
independent of the will of the accused, that is,
the timely arrival of the said Antonio Borja,
who having surprised the said accused in the
criminal act caused the accused to let loose
the said rooster and to leave the same in the
premises of the said owner.
"That the said accused is a habitual criminal
within the purview of Act No. 3586, he having
previously been conVicted by final judgments
of competent courts seven (7) times of the
said crime of theft and once (1) of attempted
robbery within a period of ten (10) years from
the date of his last conviction on June 9,
1924."
After the hearing, during which the defendant
had the benefit of counsel, he was found
guilty of the crime of attempted theft, and was
sentenced to pay a fine of 325 pesetas or
P65, with subsidiary imprisonment in case of
insolvency, and to pay the costs; he was
further sentenced to the additional penalty of
twenty-one years' imprisonment as an
habitual criminal in accordance with
subsection (d) of Act No. 3586. The
defendant appealed.
The record shows that in the early morning of
March 6, 1931, the aforementioned appellant
went to the veranda of the complainant,
Antonio Borja, and tried to carry away his
game cock; he was untying the cock with the
evident intent of taking it away, when Borja
approached and foiled his attempt to steal it.
When the appellant became aware of Borja's
presence, he let go of the cock and ran away,
with Borja and one Aquino in pursuit; he was
finally caught and arrested by policeman
Arcadio Rivero who had also appeared upon
the scene and assisted in the capture of the
appellant.

Pedro Soriano y Sison was charged in the


Court of First Instance of Manila with the
crime of frustrated theft committed as follows,
to wit:

The appellant has been seven times


convicted of the crime of theft and once of
attempted robbery, his last two convictions
having taken place on June 9, 1924, within
ten years s immediately preceding his
conviction in the instant case.

"That on or about the 6th day of March, 1931,


in the City of Manila, Philippine Islands, the
said-accused willfully, unlawfully, and
feloniously, with intent of gain and without the
consent of the owner thereof, took and was in
the act of carrying away the fighting rooster

The defense raises two questions, one of fact


and the other of law. The first is that the
evidence is not sufficient to sustain a
conviction of the crime of which he has been
found guilty. The facts, as established by the
evidence, fully support the finding of the

defendant's guilt. The second question is that


the Law on Habitual Delinquency is
unconstitutional as being ex post facto,
discriminatory, and imposes a double penalty
for the same offense. Not one of these
contentions is supported by the law. We have
already held in People vs. Sierra (G. R. No.
28516, April 21, 1928)1; People vs. Ortezuela
(51 Phil., 857); People vs. Madrano (53 Phil.,
860); and People vs. Montera (55 Phil., 933),
that the law in question is valid and
constitutional and suffers from none of the
defects attributed to it by the defense; and in
the case of People vs. Abuyen (52 Phil., 722),
it was further held that the said law is
applicable to both consummated and
frustrated or attempted crimes.
The judgment appealed from being in
accordance with the law, it is hereby affirmed
in its entirety, with costs against the appellant.
So ordered.
Judgment affirmed. [People vs. Soriano, 56
Phil. 95(1931)]
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs. DECOROSO ACA-AC
y CESPON, accused-appellant.
MENDOZA, J.:
This is an appeal from the decision,[1] dated
February 19, 1994, of the Regional Trial
Court, Branch 4, City of Tagbilaran, finding
accused-appellant Decoroso Aca-ac y
Cespon, alias Kokong, guilty of frustrated
rape and sentencing him to suffer the
indeterminate penalty of imprisonment 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, with accessory
penalties, and to indemnify the complainant
Fritzie Aca-ac the amount of P30,000.00 as
moral damages and P20,000.00 as
exemplary damages. Originally taken to the
Court of Appeals, the appeal was certified to
this Court pursuant to Rule 124, 13 of the
Revised Rules on Criminal Procedure in view
of the appeals courts ruling[2] that accusedappellant is guilty of consummated, not
frustrated, rape and that the appropriate
penalty to be imposed on accused-appellant
is reclusion perpetua.
The facts are as follows:
On the basis of criminal complaints[3] of the
minor Fritzie Aca-ac, four informations[4]for

rape were filed against accused-appellant in


the Regional Trial Court of Tagbilaran City.
In Criminal Case No. 7091, the information
alleged:
That on or about the 22nd day of September,
1990 at Barangay Villalimpia, Municipality of
Loay, Province of Bohol, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused through craft,
lured and brought the victim Fritzie Aca-ac, a
minor below twelve years of age, to the
formers house and to his bedroom and
thereafter, with intent to have sexual
intercourse, removed the victims panty, let
her lie down while he lay on top her, inserted
his penis into her labia minora near the
clitoris of the vagina and succeeded in having
carnal knowledge with the victim with her
vitiated consent since she is below twelve
years old, to the damage and prejudice of the
said offended party.
CONTRARY TO LAW.
In Criminal Case No. 7092, the information
charged:
That on or about the 17th day of October,
1990 at Barangay Villalimpia, Municipality of
Loay, Province of Bohol, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused through craft,
lured the victim Fritzie Aca-ac, a minor below
twelve years of age to remove her shorts and
panty and to lie down on the ground, and
thereafter, the accused inserted his penis into
her vagina near the clitoris and vaginal
opening and succeeded in having carnal
knowledge with the victim with her vitiated
consent since she is below twelve years old,
to the damage and prejudice of the said
offended party.
CONTRARY TO LAW.
In Criminal Case No. 7093, the information
alleged:
That on or about the 12th day of January,
1991 at Barangay Villalimpia, Municipality of
Loay, Province of Bohol, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused through craft,
lured the victim Fritzie Aca-ac, a minor below
twelve years of age to go to a bushy place
near a nipa plantation, and, upon reaching
the place, let her undress and lie down while
he lay on top of her, and thereafter, he
inserted his penis inside her vaginal opening

29

near her clitoris and succeeded in having


carnal knowledge with the victim with her
vitiated consent since she is below twelve
years old, to the damage and prejudice of the
said offended party.
CONTRARY TO LAW.
In Criminal Case No. 7094, the information
asserted:
That on or about the 8th day of September,
1990 at Barangay Villalimpia, Municipality of
Loay, Province of Bohol, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused through craft,
lured and brought the victim Fritzie Aca-ac, a
minor below twelve years of age, to an old
uninhabited house, and thereafter, upon
reaching the place, took off her shorts and
her panty with intent to have sexual
intercourse with her and then let her lie down
after which the accused lay on top of her and
inserted his penis into the labia minora near
the clitoris of the vagina of the victim and
succeeded in having carnal knowledge with
her vitiated consent since she is below twelve
years old, to the damage and prejudice of the
said offended party.
CONTRARY TO LAW.
Accused-appellant having pleaded not guilty
to the charges, the joint trial of the cases was
set. Five witnesses were presented by the
prosecution in support of its case, namely,
complainant Fritzie Aca-ac, her mother,
Felipa Aca-ac, her classmate, Algerico Lonio,
the physician, Dr. Stella Maris J. Amora, and
rebuttal witness Esteban Dagandan.
In Criminal Case No. 7094, complainant
testified that on September 8, 1990, she was
asked by her mother Felipa Aca-ac to buy
cooked fish (inon-onan) for dinner from a
store in Barangay Villalimpia, Loay, Bohol.
On her way home, she met accusedappellant, who held her by the hand and
forced her to go with him to the vacant house
of one Pinay Aguirre. Once inside, accusedappellant removed complainants shorts and
panty and made her lie down on the floor,
which was covered with coconut leaves.
Complainant claimed that accused-appellant
fondled her breasts and licked her private
parts. He then went on top of her and made
push and pull movements. When he was
through, complainant said, accused-appellant
withdrew his penis and white fluid came out.
Complainant said she then wiped her private

parts and put on her clothes. She said she


did not tell anyone what happened to her.[5]
Algerico Lonio, a resident of Barangay
Villalimpia, Loay, Bohol and a classmate of
complainant, testified that at about 7:00 p.m.
of September 8, 1990, he was at the house of
one Emmie Blasco when he saw accusedappellant and complainant going inside the
house of Pinay Aguirre, which was known in
the neighborhood to be haunted. Out of
curiosity, he said, he followed the two and
peeped through the fence at the back. He
saw accused-appellant undress complainant,
go on top of her, and make push and pull
movements. Lonio said he knew that the two
were having sexual intercourse, which lasted
for about three minutes. He claimed he did
not tell anyone what he saw for fear of his life.
But, Lonio said, on February 27, 1991, he
and complainant had a quarrel in school
during which he asked complainant about the
rape. According to Lonio, complainant
admitted that accused-appellant had raped
her and then left crying. Lonio later narrated
the incident to complainants mother.[6]
In Criminal Case No. 7091, complainant
testified that at about 4:00 p.m. of September
22, 1990, after gathering some guavas in
Barangay Villalimpia, Loay, Bohol, she
passed by the house of accused-appellant on
her way home. When accused-appellant saw
her, he tried to lure her on the pretext that he
had some papayas for her. Complainant got
inside the house but, sensing that there was
no papaya in the house, she immediately
tried to leave. Accused-appellant, however,
closed the door and brought her to his
bedroom where he raped her. Accusedappellant threatened her with harm if she told
anyone about the incident.[7]
In Criminal Case No. 7092, complainant
testified that at about 4:30 p.m. of October
17, 1990, as she was gathering firewood in
Barangay Villalimpia, Loay, Bohol, accusedappellant came and forced her to remove her
shorts and panty. She was made to lie down
on the ground covered with nipa leaves and
was then raped by accused-appellant.
Complainant went home after the incident,
bringing with her the firewood she had
gathered.[8]
In Criminal Case No. 7093, complainant
testified that at about 1:00 p.m. of January
12, 1991, as she was on her way home from
the house of a certain Betty, she saw
accused-appellant near the house of one Ned
Reyes in Villalimpia, Loay, Bohol. Accused-

appellant seized her and dragged her to a


bush near the plantation and made her
undress and lie down. Then he allegedly
forced her to have sexual intercourse with
him.[9]
Complainants mother, Felipa Aca-ac, testified
that accused-appellant is the cousin of her
father-in-law, Faustino Aca-ac. She said that
in the afternoon of February 27, 1991, she
learned from Lonio that her daughter had
been raped by accused-appellant. She said
that when she confronted her daughter, the
latter admitted that accused-appellant had
raped her four times. According to her, the
next day, February 28, 1991, she took Fritzie
to Dr. Stella Maris J. Amora of the Governor
Celestino Gallares Memorial Hospital for
medical examination. Felipa said that
accused-appellant offered to pay P12,000.00
as settlement of the case.[10]
Dr. Amora testified that there was no
laceration in the hymen of complainant. She
said, however, that it was possible that there
could be a penetration of a male organ up to
the labia minora and the hymen would still be
intact.[11]
The defense presented six witnesses,
namely, accused-appellant Decoroso Aca-ac,
Faustino Aca-ac, Felix Adorable, Rosalio
Pamayloan, Petronia Aca-ac, and Alberto
Cempron.
Accused-appellant Decoroso Aca-ac y
Cespon, 57 years old at the time of the
alleged rape incidents, denied the charges
and claimed that Felipa Aca-ac had instigated
complainant to file the charges because he
told Felipas husband that Felipa was having
an affair with another man. He said the
charges were trumped up by Felipa because
she wanted to extort P30,000.00 from him.
He also stated that he had a quarrel with
Felipas husband, Roberto, because the latter
had stolen his chicken. Accused-appellant
said he reported the matter to Barangay
Captain Felix Adorable. He stated that
Faustino Aca-ac tried to get the parties to
settle the case, but he failed in his efforts.
Accused-appellant alleged that at 57, he was
already old and that he could no longer have
an erection.[12]
Faustino Aca-ac, grandfather of complainant
and a cousin of accused-appellant, testified
that he did not believe accused-appellant
committed the crime. He said accusedappellant and complainants parents had a

misunderstanding which he tried to settle


unsuccessfully.[13]
Felix Adorable, a former barangay captain of
Villalimpia, Loay, Bohol and an incumbent
barangay kagawad, confirmed accusedappellants claim that he had filed a complaint
against Roberto Aca-ac, complainants father,
with the Katarungang Pambarangay.[14]
Rosalio Pamayloan was a neighbor of
accused-appellant and a resident of
Villalimpia, Loay, Bohol for 12 years. He
testified that he had been a principal in a
public school since 1983. He personally
knew accused-appellant and vouched for the
character of accused-appellant as a good
man.[15]
Petronia P. Aca-ac, wife of accused-appellant,
testified that she and her husband had been
married for 36 years and had six children, two
of whom had died. On the four occasions on
which it was alleged accused-appellant had
raped complainant, Petronia said her
husband was in their house helping her make
nipa shingles.[16]
On rebuttal, the prosecution presented
Esteban Dagandan, who testified that
complainants mother, Felipa, worked as a
nurse of his (Dagandans) wife, because the
latter had suffered a stroke. Dagandan
disputed accused-appellants claim that
complainant and her mother had demanded
P30,000.00 for the settlement of the case.
He said that sometime in May 1992, Albert
Berting Cempron, a nephew of accusedappellant, accompanied by his wife Lydia,
thrice went to his (Dagandans) house asking
Felipa to withdraw the case against accusedappellant. Accused-appellant offered to pay
Felipa P12,000.00 as settlement of the case,
but the same was rejected.[17]
Felipa Aca-ac was recalled to the stand. She
denied Rosalio Pamayloans testimony that
she proposed a settlement of the case for
P30,000.00 and that accused-appellant had
no criminal record in their barangay. She
said that she rejected Albert Cemprons
P12,000.00 offer, made in behalf of accusedappellant, for the settlement of the case.[18]
Complainant Fritzie Aca-ac was also recalled
to the stand. She rebutted the testimony of
accused-appellant that he could no longer
have an erection. She said she saw
accused-appellant insert his erect penis into
her vulva.[19]

30

On sur-rebuttal, Alberto A. Cempron, the


barangay captain of Matin-aw, Carmen,
Bohol, testified that he tried to bring the
parties to an amicable settlement of their
case because they are relatives and his wife
is a cousin of complainants father. However,
he said he was unsuccessful as accusedappellants wife was willing to pay only
P12,000.00, but Felipa wanted P30,000.00.
[20]
On February 19, 1994, the trial court
rendered a decision convicting accusedappellant of frustrated rape in Criminal Case
No. 7094 and acquitting him of the charges in
the rest of the cases. The dispositive portion
of its decision reads:
WHEREFORE, under Criminal Case No.
7094, the Court finds accused Decoroso Acaac y Cespon guilty beyond reasonable doubt
of the crime of frustrated rape and he is
hereby sentenced to undergo an
indeterminate penalty of imprisonment
ranging 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, with all its accessory
penalties, to indemnify the offended party
Fritzie Aca-ac the sum of P30,000.00 as
moral damages and another amount of
P20,000.00 in the concept of exemplary
damages.
As regards the three other above-entitled
cases, Criminal Case Nos. 7091, 7092, &
7093, all for rape, accused Decoroso Aca-ac
y Cespon, alias Kokong, is hereby acquitted
on the ground of reasonable doubt.
SO ORDERED.[21]
On appeal, the Court of Appeals held that
accused-appellant was guilty of
consummated rape and accordingly
sentenced him to reclusion perpetua.
Hence, this appeal.
First. In holding that the crime committed
was frustrated rape, the trial court relied on
the findings of Dr. Amora which showed that
complainant did not have any lacerations in
her hymen which in fact was intact. The trial
court pointed out that there was no evidence
of penetration into the vagina of complainant.
This is error. As this Court explained in
People v. Orita,[22] rape is either attempted
or consummated. There can be no frustrated
rape. While the penultimate paragraph of Art.

335 of the Revised Penal Code[23]


prescribes death for attempted or frustrated
rape, and a homicide committed by reason or
on the occasion thereof, the provision on
frustrated rape is a dead provision. This
Court said in Orita:
Clearly, in the crime of rape, from the moment
the offender has carnal knowledge of his
victim, he actually attains his purpose and,
from that moment also all the essential
elements of the offense have been
accomplished. Nothing more is left to be
done by the offender, because he has
performed the last act necessary to produce
the crime. Thus, the felony is consummated.
In a long line of cases (People v. Oscar, 48
Phil. 527 (1925); People v. Hernandez, 49
Phil. 980 (1925); People v. Royeras, 56
SCRA 666 (1974); People v. Amores, 58
SCRA 505 (1974)), we have set the uniform
rule that for the consummation of rape,
perfect penetration is not essential. Any
penetration of the female organ by the male
organ is sufficient. Entry of the labia or lips of
the female organ, without rupture of the
hymen or laceration of the vagina, is sufficient
to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559
(1935); People v. Rabadan and Olaybar, 53
Phil. 694 (1927); United States v. Garcia, 9
Phil. 434 (1907)) because not all acts of
execution were 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.[24]
As the Court of Appeals noted, accusedappellant should be convicted of rape in its
consummated stage and not merely for
frustrated rape, since the entry of the male
organ into the labia of the female organ alone
is sufficient to constitute consummated rape.
For that matter, the mere touching of the labia
or pudendum by the male organ is enough to
consummate the crime of rape.[25] It is
enough that there is a penetration, however
slight, of the external genitalia.[26]
Consequently, the fact that there was no
laceration of complainants private parts or
that her hymen was intact, as testified to by
Dr. Amora,[27] does not preclude a finding of
rape against accused-appellant. It bears
emphasis that a broken hymen or laceration

of any part of the female genital is not a prerequisite for a conviction for rape.[28]

A- That was the time that I squatted, I have


no more panty and short pants.

Accused-appellants claim that it was


impossible for him, then 57 years old, to
commit the crime of rape because he could
no longer have an erection is self-serving.
Age is not the criterion in determining sexual
interest and potency.

Q- Now, when you said you were squatting,


did it not occur to your mind to run away or
shout?
A- No, I did not.
Q- And so what happened after that?

The birth certificate (Exh. C) of complainant


shows that she was born on April 9, 1979.
Since complainant was then about 11 years
old when she was raped by accusedappellant on September 8, 1990, the crime is
statutory rape under Art. 335, paragraph 3 of
the Revised Penal Code.
Second. Accused-appellant contends that
the way complainant narrated the lurid details
of how she was allegedly raped is not the
way an innocent child below 12 years of age
testifies, but the way a woman, who is worldly
and experienced in sex, will testify. Accusedappellant questions complainants narration
as he likens them to stories contained in
pornographic magazines and movies.

A- He pushed down my knees and caused


me to lie down.
C O U R T:
Q- You mean the accused pushed down
your knees and thereafter pushed your body
causing you to lie down face up?
A- When he pushed down my knees, so I
squatted at that time and he also pushed my
shoulder that caused me to lie down on my
back.
ATTY. ALEXANDER H. LIM:
Q- After that what happened next?

The contention has no merit. Where an


alleged rape victim says she was sexually
abused, she says almost all that is necessary
to show that rape had been inflicted on her
person, provided her testimony meets the
test of credibility.[29] For no woman would
allow an examination of her private parts or
go through the humiliation of a trial unless
she has actually been so brutalized that she
desires justice for her suffering.[30]
In this case, accused-appellant has not
shown any reason for complainants
testimony not to be given credence. At the
time she was raped, complainant was an 11
year-old Grade 5 student of Loay Central
School in Loay, Bohol. After she was
deflowered by accused-appellant, she was
forced to silence by threats on her life. It was
only on March 1, 1991 when she executed a
sworn statement[31] before the police
authorities narrating therein how she had
been raped four times by accused-appellant.
She told her story in open court.
Complainant testified how she was raped on
September 8, 1991, thus:

A- He kissed me on the lips.


Q- Now, when he did that to you, did you not
resist?
A- I did not.
C O U R T (TO WITNESS)
Q- Why did you not like to be kissed by the
accused at that time?
A- I tried to avoid his kiss but he held my
hands.
ATTY. ALEXANDER H. LIM:
Q- Now, did you not bite him? When you
did not like his kiss?
A- I did not.
Q- Still you did not offer any resistance to
shout?
A- I resisted but he held my hands.

ATTY. ALEXANDER H. LIM:


Q- Now, what happened after your short
pants and panty were removed?

Q- Why did you tell the Court that you


uttered something?
A- I told him.

31

Q-

Meaning your voice was not heard?

Q- You were afraid of him when you said he


did not hold any weapon?

A- He mounted on me.

A- He told me not to shout.


A- I was afraid he would box me.
Q- Why did you not shout the way that it
could be heard by your neighbors?
ABecause he told me not to make
any noise for he will kill me.

C O U R T:
Any further questions?
ATTY. ALEXANDER H. LIM:

Q- Is that all?
A- Yes, sir.

Q- Before that, while the accused was


licking your vagina, were your legs apart?

Q- Now, at that time according to you he


sucked your nipples, you did not consider that
you were already endangered?

Q- But he did not carry any weapon?

ABecause my legs were apart, he


licked my vagina.
Q- You made it voluntarily or the accused
made it apart?

Q- So, he was holding your hands and you


could cross your leg if you want to?
A- I cannot cross my legs because his two
legs were over me.
C O U R T (TO WITNESS):
Q- You mean his body was over your spread
legs while mounting from the licking until he
mounted on you?

A- I was the one who spread my two legs.


A- Yes, sir, his body was over my two legs.
ATTY. ALEXANDER H. LIM:

A- I have not known of such danger.


A- No, sir.

C O U R T:

Q- After that, what happened next?

Q- In doing so, when you spread your legs,


the accused used his two hands?

Q- Now, after that kiss on your lips, what


happened next?

A- He also sucked the other nipple.

A- Yes, sir, he used his two hands.

ATTY. ALEXANDER H. LIM:

A- He sucked my nipples.

Q- So, the two nipples were sucked?

Q- At the same time he was licking your


vagina?

Q- Now, what happened after that?

Q- Did you not push him when he sucked


your nipples?

A- Yes, sir.

Any further questions?

A- He made a push and pull movement.


A- Yes, sir.

Q- So, what happened after that?


A- I held the back of his head.
A- He licked my vagina.
Q- How did he suck your nipples?

Q- And in that very moment you could stand


up or you could squat or use your hand to
fight back or to resist?

FISCAL REINERIO S. NAMOCATCAT:

Q- When he licked your vagina, you did not


shout or protest?

A- I tried to rise up and pushed his forehead.

Is there a particular way of sucking


nipples?

A- I told him dont, I tried to stand up but he


pushed me and pressed my forehead.

Q- And you succeeded in rising up pushing


his forehead?

ANSWER OF WITNESS:

Q- At that moment he was very busy licking


your vagina, what else did he do?

A- After I pushed his forehead, he crawled


and held my hands and let me lie down
again.

Q- What did you feel when he was doing


that act of push and pull movement?
A- There was something hot that I felt on my
vagina.
C O U R T:

He raised my t-shirt.
A- He pressed my forehead.
ATTY. ALEXANDER H. LIM:
Q- So, he raised your t-shirt in sucking your
nipples?
A- Yes, sir.

Q- Where did the fluid come from?


A- I did not shout, I was afraid he might
press me.

A- May be it came out when he put his penis


on my vagina.

Q- But he did not press you?


C O U R T:
Q- Did you succeed when you stand up after
pushing the forehead of the accused?

A- I told him dont, but he did not heed.


Q- Still in a low voice?

A- It seems that there was something hot


that went out from my vagina. It was a sticky
fluid.

Q- In that process, did you not shout?


Q- While he was licking your vagina, you
pushed his head?
A- I pushed his forehead.

Q- Still in raising your t-shirt, you did not


shout?

Why did you feel something hot in your


vagina?

A- But he told me if I will make noise, he will


kill me.
Q- Now, after that what happened?

ABecause of his strength, when I


stood up, he held my hand and I was made to
lie down again.

A- Yes, sir.

A- He mounted on me.

Q- Did you feel the hot fluid coming from the


penis of the accused and did you feel inside
your vagina or from the labia of your vagina?
A- The penis was inside my vagina
because he tried to make way to the large
opening of my vagina so that his penis will
enter.

Q- His whole weight mounted on you?

Q- You did not shout loudly?

Q- While he was licking your vagina, where


was the hand of the accused?

A- I did not because he told me if I will make


a noise or report the matter, he will kill me.

A- When I pushed the forehead, he was


licking my vagina.
Q- So, what happened after that?

A- Yes, sir, his whole body.

Q- Did you feel the penis of the accused


penetrating your vagina?

Q- And how did you feel?

A- Yes, sir, it went inside.

A- I cannot push his head because he held


my hands this was the time I could not move.

COURT (TO WITNESS)

32

Q- What happened to your vagina, did it


bleed when the penis of the accused entered
your vagina?
A- The penis did not enter but just inside the
opening of my vagina.
Q- You mean in the vulva of your vagina?
A- It was not inside the opening of the
vagina but near the clitoris.
Q- So, you are now changing your
testimony, you said earlier that the penis of
the accused penetrated your vagina and now
you are changing your testimony by saying
that the penis of the accused only touched
the clitoris of your vagina?
FISCAL REINERIO S. NAMOCATCAT:
The witness is trying to say to enter the
mouth of the vagina until the clitoris. This
child is still very young to demonstrate the
fact that the penetration was made up to the
labia minora of the victim.[32]
Her consistent testimony despite intense and
lengthy interrogation[33] belies accusedappellants claim that she was telling a tale
culled from pornographic magazines or
movies. Faced with complainants testimony,
accused-appellant could only offer the
defense of denial. It is well-settled that denial
cannot prevail over the positive identification
and categorical testimony of complainant.
The rule is that between the positive
declarations of the prosecution witnesses and
the negative statements of the accused, the
former deserves more credence.[34] That is
why accused-appellant had to summon to his
aid an alleged affidavit of desistance (Exh. 3)
of complainant and her mother. But how
could this bind complainant and her mother or
prove anything when the so-called affidavit is
unsigned?
Third. Accused-appellant says complainant
did not immediately report the incidents to the
authorities nor tell the same to her mother.
He claims that the cases were filed merely to
extort money from him.
These claims have no basis. The fact that
complainant did not immediately report the
matter to the authorities was fully explained
by the prosecution. Complainant was only 11
years old when the rape incidents took place.
Young girls usually conceal for some time
their defilement.[35] Moreover, accusedappellant, being the cousin of her paternal

grandfather, exercised moral ascendancy


over complainant and even threatened her
with death if she told anyone what he had
done to her.
Nor is there any probable reason for
complainant to allow herself to be used as a
pawn of her mother Felipa to extort money
from accused-appellant. Unless it can be
shown that complainant was moved by ill will
to falsely implicate accused-appellant, the
inescapable conclusion is that her testimony
is worthy of full faith and credit.[36]
Fourth. Accused-appellant doubts the veracity
of Algerico Lonios testimony that he had
witnessed the rape of complainant on
September 8, 1990. Accused-appellant
points out that Lonio failed to report the
incident to complainants parents or to the
authorities despite the fact that there was no
threat to his life. Accused-appellant also
points out certain improbabilities in the
testimony of Lonio, to wit: that he peeped
through the back fence of the house and
saw accused-appellant raping complainant;
that despite the fact that the supposed
incident happened between 7:00 to 8:00 p.m.,
no mention was made of any form of
illumination of the place; and that accusedappellant made push and pull movements
when the medical findings show that
complainants hymen was intact, thereby
proving that there could not have been any
penetration by accused-appellants organ.
These arguments have no merit. On crossexamination, Lonio said that he knew what
would happen to complainant when accusedappellant took her to the empty house of
Pinay Aguirre because his (Lonios) own
younger sister and the sister of complainant
had been abused by accused-appellant
before. He said he saw how accusedappellant violated complainant against her
will.[37]
Answering questions of the trial court, Lonio
categorically said:

He just closed it without locking.

Q How far is the gate to the house of Pinay


Aguirre? To the main door of her house?
INTERPRETER:
Witness pointing to a distance
indicating 3 to 4 meters.

Q What door was used when they entered


the house? The back door, or front door, or
side door.
Side door.

Q How do you know that they were using


the side door when they entered the house?
A

Because I saw them.

Q The two were seeing you when you


entered the gate following them?
A

Q How far was that fence made of hogwire


to the house of Pinay Aguirre where the
complainant and the accused entered?
INTERPRETER:
Witness indicating a distance of 3 to 4
meters.

COURT:

A From a hole of a fence which is a


hogwire.

They did not see me.

COURT:
Q So that that portion of the house where
the two entered was not surrounded by any
walling in such a way that they could be seen
from the wire?
A

No wall.

Q How do you describe the house? Is it


two storeys, or a building without walls?
A A two-storey house. Only the first storey
has no wall because it was already destroyed
by a storm.

Q Did you enter the house of Pinay Aguirre


using the side door taken by the two when
they entered the same house?

Q Was the place lighted, considering that it


was already 7:00 oclock in the evening the
incident allegedly happened?

No.

A It was well lighted because the opposite


house was well lighted.

Where were [you] posted then?

A Inside the fence because I climbed over


the bamboo fence.

Q And the light would reach the house of


Pinay Aguirre?
A

Q Fence around the house of Pinay


Aguirre?
A It only connected the gate because there
was a poultry.
Q So, you did not enter the house of Pinay
Aguirre where the complainant and the
accused had entered at 7:00 oclock in the
evening of September 8, 1990?

Yes.

Q When you saw the complainant with her


shorts already pulled down, did I hear you
correctly that the accused with the bended
knees made a push-and-pull movement of
the body of the complainant?
A

Yes.

Was his penis exposed?

Yes, I saw.

COURT: (TO WITNESS)


A
Q You said that you followed the two,
accused and the complainant, after they
entered the gate of the house of Pinay
Aguirre. Did accused Decoroso not close the
gate after they gained entrance to the gate?

Q Why did you say that Fritzie Aca-ac was


already lying down and her short was pulled
and her blouse was raised above her breast?
A

A
Q

I did not.

I peeped.

Decoroso closed the gate.


Was it locked?

Q You said that the accused licked the


vagina of the complainant. Which happened
first, the licking of the vagina or the push-andpull movement?

Q There was a hole or there was a


window?

A The licking of the vagina happened first


and after that, the accused made a push-andpull movement.

33

Q Since you said that the penis of the


accused was exposed, did we understand
from you that the accused also pulled down
his trousers, as well as his underwear?
A

Yes.

Q Did you see the penis of the accused


penetrate into the vagina of the complainant?
A

I did not see because Fritzie was under.

Q In that precise moment, how far were


you to the two?
INTERPRETER:
Witness indicating a distance of 3 to 4
meters.

because he feared for his life.[40] The


testimony of Lonio contains details that
dovetails on material points with the
testimony of complainant.
Fifth. While increasing the imposable penalty
to reclusion perpetua in view of its conclusion
that accused-appellant was guilty of statutory
rape, the Court of Appeals affirmed the trial
courts award of P30,000.00 for moral
damages and P20,000.00 for exemplary
damages in favor of the complainant.
This ruling must be modified. In accordance
with current rulings of this Court, the award of
moral damages should be increased to
P50,000.00.[41] In addition, complainant
should be paid P50,000.00 as civil indemnity.
[42] On the other hand, the award of
P20,000.00 as exemplary damages should
be deleted for lack of basis.

COURT:
Q Did you hear any utterances [from] either
of the two regarding the push-and-pull
movement made by the accused? Did you
hear anything from the accused while making
a push-and-pull movement?
A

None.

Q From complainant Fritzie, did you hear


anything from her while the accused was
making a push-and-pull movement over her?

WHEREFORE, the decision of the Court of


Appeals finding accused-appellant Decoroso
Aca-ac y Cespon guilty of statutory rape and
sentencing him to suffer the penalty of
reclusion perpetua is AFFIRMED with the
MODIFICATION that accused-appellant is
ordered to pay complainant Fritzie Aca-ac
P50,000.00 as civil indemnity and, in addition,
P50,000.00 as moral damages. The award of
P20,000.00 as exemplary damages is hereby
deleted.

A
Because of the movement of
Decoroso.
Q After the push-and-pull movement, what
transpired next?
A

No more.[38]

The alleged inconsistencies in the testimony


of Lonio as to the details of the September 8,
1990 rape incident are inconsequential. It
was evident that Lonio was telling the truth.
He cried after narrating to the court how he
told his mother about the incident. When the
trial judge asked him why he cried, Lonio
said that he was hurt because the same thing
happened to his younger sister.[39] He also
said that he kept his silence in the beginning

On January 11, 1989, the Court of Appeals


issued a resolution setting aside its
December 29, 1988 decision and forwarded
the case to this Court, considering the
provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with
Section 17, paragraph 3, subparagraph 1 of
the Judiciary Act of 1948.
The antecedent facts as summarized in the
People's brief are as follows (pp. 71-75,
Rollo):

CONTRARY TO LAW.
Upon being arraigned, the accused entered
the plea of not guilty to the offense charged.
After the witnesses for the People testified
and the exhibits were formally offered and
admitted, the prosecution rested its case.
Thereafter, the defense opted not to present
any exculpatory evidence and instead filed a
Motion to Dismiss. On August 5, 1985, the
trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60,
Rollo):

Complainant Cristina S. Abayan was a 19year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar.
Appellant was a Philippine Constabulary (PC)
soldier.
In the early morning of March 20, 1983,
complainant arrived at her boarding house.
Her classmates had just brought her home
from a party (p. 44, tsn, May 23, 1984).
Shortly after her classmates had left, she
knocked at the door of her boarding house (p.
5, ibid). All of a sudden, somebody held her
and poked a knife to her neck. She then
recognized appellant who was a frequent
visitor of another boarder (pp. 8-9, ibid).

C. Manalo for defendant-appellant.


MEDIALDEA, J.:

SO ORDERED.

The accused, Ceilito Orita alias Lito, was


charged with the crime of rape in Criminal
Case No. 83-031-B before the Regional Trial
Court, Branch II, Borongan, Eastern Samar.
The information filed in the said case reads
as follows (p. 47, Rollo):

Not satisfied with the decision, the accused


appealed to the Court of Appeals. On
December 29, 1988, the Court of Appeals
rendered its decision, the dispositive portion
of which reads (p. 102, Rollo):

Upon entering the room, appellant pushed


complainant who hit her head on the wall.
With one hand holding the knife, appellant
undressed himself. He then ordered
complainant to take off her clothes. Scared,
she took off her T-shirt. Then he pulled off her
bra, pants and panty (p. 20, ibid).

WHEREFORE, the trial court's judgment is


hereby MODIFIED, and the appellant found
guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the
amount of P30,000.00.

He ordered her to lie down on the floor and


then mounted her. He made her hold his
penis and insert it in her vagina. She followed
his order as he continued to poke the knife to
her. At said position, however, appellant could
not fully penetrate her. Only a portion of his

I did not hear any word from Fritzie.

Q You said earlier that the accused and the


complainant had several intercourse. This is
also testified to by you during the crossexamination. Do you know that the two were
having sexual intercourse?

SO ORDERED.

WHEREFORE. the Court being morally


certain of the guilt of accused CEILITO
ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable
doubt, with the aggravating circumstances of
dwelling and nightime (sic) with no mitigating
circumstance to offset the same, and
considering the provisions of the
Indeterminate Sentence Law, imposes on
accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR,
as minimum to TWELVE (12) YEARS
PRISION MAYOR, maximum; to indemnify
CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) Pesos, without
subsidiary imprisonment in case of
insolvency, and to pay costs.

SO ORDERED.
A

That on March 20, 1983, at about 1:30


o'clock in the morning inside a boarding
house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the
jurisdiction of this Honorable Court, above
named accused with lewd designs and by the
use of a Batangas knife he conveniently
provided himself for the purpose and with
threats and intimidation, did, then and there
wilfully, unlawfully and feloniously lay with
and succeeded in having sexual intercourse
with Cristina S. Abayan against her will and
without her consent.

THE PEOPLE OF THE PHILIPPINES,


plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendantappellant.
The Office of the Solicitor General for plaintiffappellee.

The undersigned Second Assistant Provincial


Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias
LITO of the crime of Rape committed as
follows:

She pleaded with him to release her, but he


ordered her to go upstairs with him. Since the
door which led to the first floor was locked
from the inside, appellant forced complainant
to use the back door leading to the second
floor (p. 77, ibid). With his left arm wrapped
around her neck and his right hand poking a
"balisong" to her neck, appellant dragged
complainant up the stairs (p. 14, ibid). When
they reached the second floor, he
commanded her to look for a room. With the
Batangas knife still poked to her neck, they
entered complainant's room.

34

penis entered her as she kept on moving (p.


23, ibid).
Appellant then lay down on his back and
commanded her to mount him. In this
position, only a small part again of his penis
was inserted into her vagina. At this stage,
appellant had both his hands flat on the floor.
Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked
herself in. Appellant pursued her and climbed
the partition. When she saw him inside the
room, she ran to another room. Appellant
again chased her. She fled to another room
and jumped out through a window (p. 27,
ibid).
Still naked, she darted to the municipal
building, which was about eighteen meters in
front of the boarding house, and knocked on
the door. When there was no answer, she ran
around the building and knocked on the back
door. When the policemen who were inside
the building opened the door, they found
complainant naked sitting on the stairs crying.
Pat. Donceras, the first policeman to see her,
took off his jacket and wrapped it around her.
When they discovered what happened, Pat.
Donceras and two other policemen rushed to
the boarding house. They heard a sound at
the second floor and saw somebody running
away. Due to darkness, they failed to
apprehend appellant.
Meanwhile, the policemen brought
complainant to the Eastern Samar Provincial
Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician
who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built,
came in with loose clothing with no underclothes; appears in state of shock, per
unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant.
neck.
Breast Well developed, conical in shape
with prominent nipples; linear abrasions
below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L)
knees.

Vulva No visible abrasions or marks at the


perineal area or over the vulva,
errythematous (sic) areas noted surrounding
vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining
finger can barely enter and with difficulty;
vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted
the accused of frustrated rape.
In this appeal, the accused assigns the
following errors:
1) The trial court erred in disregarding the
substantial inconsistencies in the testimonies
of the witnesses; and
2) The trial court erred in declaring that the
crime of frustrated rape was committed by the
accused.
The accused assails the testimonies of the
victim and Pat. Donceras because they
"show remarkable and vital inconsistencies
and its incredibility amounting to fabrication
and therefore casted doubt to its candor, truth
and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies
revealed that they refer to trivial
inconsistencies which are not sufficient to blur
or cast doubt on the witnesses'
straightforward attestations. Far from being
badges of fabrication, the inconsistencies in
their testimonies may in fact be justifiably
considered as manifestations of truthfulness
on material points. These little deviations also
confirm that the witnesses had not been
rehearsed. The most candid witnesses may
make mistakes sometimes but such honest
lapses do not necessarily impair their intrinsic
credibility (People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA 98). Rather
than discredit the testimonies of the
prosecution witnesses, discrepancies on
minor details must be viewed as adding
credence and veracity to such spontaneous
testimonies (Aportadera et al. v. Court of
Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact,
complete uniformity in details would be a
strong indication of untruthfulness and lack of
spontaneity (People v. Bazar, G.R. No. L41829, June 27, 1988, 162 SCRA 609).
However, one of the alleged inconsistencies
deserves a little discussion which is, the
testimony of the victim that the accused
asked her to hold and guide his penis in order
to have carnal knowledge of her. According to

the accused, this is strange because "this is


the only case where an aggressor's advances
is being helped-out by the victim in order that
there will be a consumation of the act." (p. 34,
Rollo). The allegation would have been
meritorious had the testimony of the victim
ended there. The victim testified further that
the accused was holding a Batangas knife
during the aggression. This is a material part
of the victim's testimony which the accused
conveniently deleted.
We find no cogent reason to depart from the
well-settled rule that the findings of fact of the
trial court on the credibility of witnesses
should be accorded the highest respect
because it has the advantage of observing
the demeanor of witnesses and can discern if
a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989).
We quote with favor the trial court's finding
regarding the testimony of the victim (p 56,
Rollo):
As correctly pointed out in the memorandum
for the People, there is not much to be
desired as to the sincerity of the offended
party in her testimony before the court. Her
answer to every question profounded (sic),
under all circumstances, are plain and
straightforward. To the Court she was a
picture of supplication hungry and thirsty for
the immediate vindication of the affront to her
honor. It is inculcated into the mind of the
Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been
raped, she says in effect all that is necessary
to show that rape was committed provided
her testimony is clear and free from
contradiction and her sincerity and candor,
free from suspicion (People v Alfonso, G.R.
No. 72573, August 31, 1987, 153 SCRA 487;
People v. Alcid, G.R. Nos. 66387-88,
February 28, 1985, 135 SCRA 280; People v.
Soterol G.R. No. 53498, December 16, 1985,
140 SCRA 400). The victim in this case did
not only state that she was raped but she
testified convincingly on how the rape was
committed. The victim's testimony from the
time she knocked on the door of the
municipal building up to the time she was
brought to the hospital was corroborated by
Pat. Donceras. Interpreting the findings as
indicated in the medical certificate, Dr.
Reinerio Zamora (who was presented in view
of the unavailability of Dr. Abude) declared
that the abrasions in the left and right knees,
linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at

the anterior neck, erythematous area


surrounding the vaginal orifice and tender
vulva, are conclusive proof of struggle against
force and violence exerted on the victim (pp.
52-53, Rollo). The trial court even inspected
the boarding house and was fully satisfied
that the narration of the scene of the incident
and the conditions therein is true (p. 54,
Rollo):
. . . The staircase leading to the first floor is in
such a condition safe enough to carry the
weight of both accused and offended party
without the slightest difficulty, even in the
manner as narrated. The partitions of every
room were of strong materials, securedly
nailed, and would not give way even by
hastily scaling the same.
A little insight into human nature is of utmost
value in judging rape complaints (People v.
Torio, et al., G.R. No. L-48731, December 21,
1983, 126 SCRA 265). Thus, the trial court
added (p. 55, Rollo):
. . . And the jump executed by the offended
party from that balcony (opening) to the
ground which was correctly estimated to be
less than eight (8) meters, will perhaps
occasion no injury to a frightened individual
being pursued. Common experience will tell
us that in occasion of conflagration especially
occuring (sic) in high buildings, many have
been saved by jumping from some
considerable heights without being injured.
How much more for a frightened barrio girl,
like the offended party to whom honor
appears to be more valuable than her life or
limbs? Besides, the exposure of her private
parts when she sought assistance from
authorities, as corroborated, is enough
indication that something not ordinary
happened to her unless she is mentally
deranged. Sadly, nothing was adduced to
show that she was out of her mind.
In a similar case (People v. Sambili G.R. No.
L-44408, September 30, 1982, 117 SCRA
312), We ruled that:
What particularly imprints the badge of truth
on her story is her having been rendered
entirely naked by appellant and that even in
her nudity, she had to run away from the
latter and managed to gain sanctuary in a
house owned by spouses hardly known to
her. All these acts she would not have done
nor would these facts have occurred unless
she was sexually assaulted in the manner
she narrated.

35

The accused questions also the failure of the


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

a woman (Black's Law Dictionary. Fifth


Edition, p. 193).
On the other hand, Article 6 of the same
Code provides:
Art. 6. Consummated, frustrated, and
attempted felonies. Consummated felonies
as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the
elements necessary for its execution and
accomplishment are present; and it is
frustrated when the offender performs all the
acts of execution which would produce the
felony as a consequence but which,
nevertheless, do not produce it by reason of
causes independent of the will of the
perpetrator.
There is an attempt when the offender
commences the commission of a felony
directly by overt acts, and does not perform
all the acts of execution which should
produce the felony by reason of some cause
or accident other than his own spontaneous
desistance.
Correlating these two provisions, there is no
debate that the attempted and consummated
stages apply to the crime of rape. Our
concern now is whether or not the frustrated
stage applies to the crime of rape.
The requisites of a frustrated felony are: (1)
that the offender has performed all the acts of
execution which would produce the felony
and (2) that the felony is not produced due to
causes independent of the perpetrator's will.
In the leading case of United States v.
Eduave, 36 Phil. 209, 212, Justice Moreland
set a distinction between attempted and
frustrated felonies which is readily understood
even by law students:
. . . A crime cannot be held to be attempted
unless the offender, after beginning the
commission of the crime by overt acts, is
prevented, against his will, by some outside
cause from performing all of the acts which
should produce the crime. In other words, to
be an attempted crime the purpose of the
offender must be thwarted by a foreign force
or agency which intervenes and compels him
to stop prior to the moment when he has
performed all of the acts which should
produce the crime as a consequence, which
acts it is his intention to perform. If he has
performed all of the acts which should result
in the consummation of the crime and

voluntarily desists from proceeding further, it


can not be an attempt. The essential element
which distinguishes attempted from frustrated
felony is that, in the latter, there is no
intervention of a foreign or extraneous cause
or agency between the beginning of the
commission of the crime and the moment
when all of the acts have been performed
which should result in the consummated
crime; while in the former there is such
intervention and the offender does not arrive
at the point of performing all of the acts which
should produce the crime. He is stopped
short of that point by some cause apart from
his voluntary desistance.
Clearly, in the crime of rape, from the moment
the offender has carnal knowledge of his
victim he actually attains his purpose and,
from that moment also all the essential
elements of the offense have been
accomplished. Nothing more is left to be done
by the offender, because he has performed
the last act necessary to produce the crime.
Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527;
People v. Hernandez, 49 Phil. 980; People v.
Royeras, G.R. No. L-31886, April 29, 1974,
56 SCRA 666; People v. Amores, G.R. No. L32996, August 21, 1974, 58 SCRA 505), We
have set the uniform rule that for the
consummation of rape, perfect penetration is
not essential. Any penetration of the female
organ by the male organ is sufficient. Entry of
the labia or lips of the female organ, without
rupture of the hymen or laceration of the
vagina is sufficient to warrant conviction.
Necessarily, rape is attempted if there is no
penetration of the female organ (People v.
Tayaba, 62 Phil. 559 People v. Rabadan et
al., 53 Phil. 694; United States v. Garcia: 9
Phil. 434) because not all acts of execution
was performed. The offender merely
commenced the commission of a felony
directly by overt acts. Taking into account the
nature, elements and manner of execution of
the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the
frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier
pronouncement in the case of People v. Eria
50 Phil. 998 [1927] where We found the
offender guilty of frustrated rape there being
no conclusive evidence of penetration of the
genital organ of the offended party. However,
it appears that this is a "stray" decision
inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal

Code, as amended by Republic Act No. 2632


(dated September 12, 1960) and Republic Act
No. 4111 (dated March 29, 1965) which
provides, in its penultimate paragraph, for the
penalty of death when the rape is attempted
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 Eria
case, supra, might have prompted the lawmaking body to include the crime of frustrated
rape in the amendments introduced by said
laws.
In concluding that there is no conclusive
evidence of penetration of the genital organ
of the victim, the trial court relied on the
testimony of Dr. Zamora when he
"categorically declared that the findings in the
vulva does not give a concrete disclosure of
penetration. As a matter of fact, he tossed
back to the offended party the answer as to
whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the
trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in
the medical certificate (Exhibit "A") as
interpreted by Dr. Reinerio Zamora and the
equivocal declaration of the latter of
uncertainty whether there was penetration or
not. It is true, and the Court is not oblivious,
that conviction for rape could proceed from
the uncorroborated testimony of the offended
party and that a medical certificate is not
necessary (People v. Royeras People v.
Orteza, 6 SCRA 109, 113). But the citations
the people relied upon cannot be applicable
to the instant case. The testimony of the
offended party is at variance with the medical
certificate. As such, a very disturbing doubt
has surfaced in the mind of the court. It
should be stressed that in cases of rape
where there is a positive testimony and a
medical certificate, both should in all respect,
compliment each other, for otherwise to rely
on the testimony alone in utter disregard of
the manifest variance in the medical
certificate, would be productive of
mischievous results.
The alleged variance between the testimony
of the victim and the medical certificate does
not exist. On the contrary, it is stated in the
medical certificate that the vulva was
erythematous (which means marked by
abnormal redness of the skin due to capillary
congestion, as in inflammation) and tender. It
bears emphasis that Dr. Zamora did not rule
out penetration of the genital organ of the
victim. He merely testified that there was

36

uncertainty whether or not there was


penetration. Anent this testimony, the victim
positively testified that there was penetration,
even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply,
or what act do you referred (sic) to, when you
said comply?

78732-33, February 14, 1990). Reclusion


perpetua, being a single indivisible penalty
under Article 335, paragraph 3, is imposed
regardless of any mitigating or aggravating
circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see
People v. Arizala, G.R. No. 59713, March 15,
1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118
SCRA 705; People v. Ramirez, G.R. No.
70744, May 31, 1985, 136 SCRA 702).

Q And was it inserted?

ACCORDINGLY, the decision of the Regional


Trial Court is hereby MODIFIED. The
accused Ceilito Orita is hereby found guilty
beyond reasonable doubt of the crime of rape
and sentenced to reclusion perpetua as well
as to indemnify the victim in the amount of
P30,000.00.

A Yes only a little.

SO ORDERED.

The fact is that in a prosecution for rape, the


accused may be convicted even on the sole
basis of the victim's testimony if credible
(People v. Tabago, G.R. No. 69778,
November 8, 1988, 167 SCRA 65; People v.
Aragona, G.R. No. L-43752, September 19,
1985, 138 SCRA 569; People v. Taduyo, G.R.
Nos. L-37928-29, September 29, 1987, 154
SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not
an indispensable element in the prosecution
of this case (People v. Alfonso, supra).

G.R. No. 165483


2006

A I inserted his penis into my vagina.

Although the second assignment of error is


meritorious, it will not tilt the scale in favor of
the accused because after a thorough review
of the records, We find the evidence sufficient
to prove his guilt beyond reasonable doubt of
the crime of consummated rape.
Article 335, paragraph 3, of the Revised
Penal Code provides that whenever the crime
of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion
perpetua to death. The trial court appreciated
the aggravating circumstances of dwelling
and nighttime. Thus, the proper imposable
penalty is death. In view, however, of Article
111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al.,
G.R. Nos. L-38968-70, February 9, 1989, that
the cited Constitutional provision did not
declare the abolition of the death penalty but
merely prohibits the imposition of the death
penalty, the Court has since February 2, 1987
not imposed the death penalty whenever it
was called for under the Revised Penal Code
but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos.

September 12,

RUJJERIC Z. PALAGANAS,1 petitioner,


vs.
PEOPLE OF THE PHILIPPINES,
respondent.
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.

rendered to said Michael "Boying" Ferrer


which prevented his death, to his damage
and prejudice.

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,8 allegedly
committed as follows:

CONTRARY to Art. 248 in relation with Arts. 6


and 50, all of the Revised Penal Code, as
amended.

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

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

37

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
Caf 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.

38

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 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.
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. U9608, 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 temporal as
maximum. Appellant is also ordered to pay
the heirs of Melton Ferrer civil indemnity in
the amount of P50,000.00, 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 of
prision 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 of prision 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 Caf 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;

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

First. Unlawful aggression;

39

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 selfdefense.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.41 As 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 selfdefense.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 selfdefense.
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

40

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 is P50,000.00, and

that the proper amount for moral damages is


P50,000.00 pursuant to prevailing
jurisprudence.70 However, 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 of P25,000.00 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 hereby AFFIRMED 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 of prision 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 of
P25,000.00 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.

41

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