Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-32754-5 July 21, 1978
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANUEL PILONES y IBAEZ, defendant-appellant.

AQUINO, J.:
Manuel Pilones appealed from the decision of the Circuit Criminal Court of Manila in Criminal
Cases Nos. CCC-VI-170 (70) and CCC-VI-171 (70), convicting him of murder and frustrated
murder, and sentencing him in the murder case to life imprisonment and to indemnify the heirs
of Antonio G. Renolia in the sum of P18,000.
In the frustrated murder case, he was sentenced to an indeterminate penalty ranging from six
years and one day of prision mayor, as minimum, to twelve years and one day of reclusion
temporal, as maximum, for having assaulted Nicanor Ilagan. No indemnity was imposed.
In the evening of April 9, 1970 a wake or vigil for the dead (lamayan) was held in a house near
Jossie Bakery, located at J.(F.) Posadas Street, Punta, Sta. Ana, Manila. Among the many
persons present at that vigil were Nicanor Ilagan, 19, single, jobless, a student, and Antonio G.
Renolia (Renolla), nicknamed Tony, 22, married, a jeepney driver, respectively residing at 2572
F. Posadas Street and 2495 Bagong Sikat Street, both located at Punta, Sta. Ana, Manila.
Shortly after midnight or in the early morning of April 10, 1970, the house, where the vigil was
being held, was stoned. Ilagan and the others came out of the house and went to the street to find
out who had hurled the stones. As Ilagan stood on the lighted street, he was shot in the knee
(Exh. E). He fell on the ground. The assailant was at a distance of around six meters from Ilagan
and about fifteen meters away from the electric lamp on the street. Ilagan saw his assailant's face.
Because of the light of the electric lamp, Ilagan remembered his assailant as the same person
whom he had seen a week before in that vicinity, challenging persons to a fight.
When Ilagan fell, Tony, who had also come out of the house, went to his assistance and tried to
lift him. While in a stopping position, Tony was shot by the same assailant. The bullet entered
his "upper left anterior chest" over the second rib and "coursed downward and backward,
lacerating his left pulmonary artery and his right lung" (Exh. D).
The assailant and his companions, Danny Banlag, Milo and others, who were armed with arrows
and carried stones, ran away.

Tony or Antonio G. Renolia died on the way to the hospital. Ilagan was also brought to the
hospital where he was treated for two weeks.
For sometime, the police made no progress in the investigation of the crime. On the third day
after the shooting, Ilagan, while in the hospital was informed by his friend, one of whom was
Aida, that his assailant was Manuel Pilones.
Fifty days after the shooting, or on May 30, 1970, Manuel Pilones, 20, jobless, a resident of 148
Tenement Housing Project, Punta, Sta. Ana, Manila was arrested for vagrancy by patrolmen of
Precinct No. 9. Ilagan, who was fetched from his residence by Tony's mother, Identified as the
person who had shot him after midnight on April 10, 1970. At that confrontation, Pilones was
just one arm's length from Ilagan.
When Ilagan fingered Pilones as the malecfactor. who had shot him and Tony Renolia (Question
No. 19 of Exh. P), Pilones did not say anything (18 tsn July 13, 1970). Emiliana Giray Renolia,
the mother of Tony, a resident of 2225 F. Posadas Street, Punta, Sta. Ana, was also at the
precicnt. She likewise Identified Pilones as the assailant of her deceased son and three other
persons (Crime Report, Exh. G). Pilones refused to give any statement or comment at that
investigation. The investigator's testimony On this point upon interrogation by the fiscal is as
follows (2 tsn July 30, 1970):
Q In Exhibit F (Ilagan statement), the witness Nicanor Ilagan
pointed to Manuel Pilones in answer to Question No. 19, where
was accused Pilones when pointed to by witness Nicanor Ilagan?
A He was present in the investigation room. sir.
Q How far was he from Nicanor Ilagan when pointed to by him?
A He was near the table sir.
Q Do you know whether the accused heard Nicanor Ilagan when
pointed to as the one responsible for the shooting of the victim?
A Yes, sir.
Q What did he say.?
A Nothing, sir.
Q Did you investigate accused Pilones?
A Yes, sir.
Q Did you confront him with this case?

A Yes, sir.
Q What did he say?
A He said nothing.
Q Did you take his statement?
A No, sir.
Q Why?
A He is (was) not willing to give his statement.
Q Why was he not willing to give his statement?
A I do not know, sir.
Q Did you explain the reason why?
A Yes, sir, but he refused to give his statement.
At the trial Pilones relied on an alibi. He testified that when the shooting occurred, he was in the
house of his aunt, Marilou Campbell, at Olongapo City. He was in that place from December 31,
1969 to May 28, 1970. His aunt and his brother-in-law, who was allegedly his companion in
going to Olongapo City, did not take the witness stand to corroborate his alibi.
Anacoreta Castro, a widow and a neighbor of Pilones at Punta, Sta. Ana, corroborated his alibi
However, her testimony is weakened by a serious contradiction. She testified that Pilones, who
was like a child to her because his family and her family "are practically one", left for Olongapo
City before Christmas, while, on the other hand, Pilones testified that he went to that
Place after Christmas or on December 31, 1969 (6 and 14 tsn July 30, 1970).
The personal circumstances of Pilones may be useful in assessing his character. He has a
common-law wife. He has tattoo marks on his body placed by Ben Lumot. He claims that he was
framed up by Patrolman Bayani Lasian, who resided at the sixth floor of the tenement house,
where he (Pilones) also resided. Patrolman Lasian allegedly suspected Pilones of being
implicated in the killing of Patrolman Gameng. Lasian allegedly had a grudge against Pilones
because during a basketball tournament among residents of the tenement house Pilones "tripped"
and Lasian boxed him (7 tsn July 30, 1970; See Exh. 1). The residence of Pilones is about 12
meters away from Posadas Street.
The crucial factual issue is whether Pilones was sufficiently Identified by the prosecution's sole
eyewitness, Ilagan. as the assailant of Ilagan and the deceased Tony Renolia.

The doctor, who treated Ilagan. testified that when he operated on Ilagan's wounded knee, he
extracted therefrom metallic fragments. On the other hand, the doctor, who conducted an autopsy
on the cadaver of Renolia, testified that he extracted a.22 caliber slug from the victim's body.
Since there is a difference between a slug and a metallic fragment, Pilones' counsel contends that
Ilagan and Renolia were shot by different persons or with different weapons.
That circumstance is not sufficient to cast a reasonable doubt on appellant's guilt. It merely
conveys the impression that, inasmuch as according to Ilagan, he and Renolia were shot in
succession, Pilones used different weapons. He had time to change weapons. He had companions
who could have assisted him in the execution of his felonious acts.
The fact is that Ilagan positively Identified Pilones as the Person who shot him (Ilagan). Even if
Renolia was shot by Pilones' companion, with a firearm different from the .22 caliber rifle used
against Ilagan, Pilones would still be criminally liable for Renolia's death because he, obviously,
conspired with the person who shot Renolia. Pilones and his companions were together at the
scene of the crime. They left the place together. They had community of design.
The decisive fact is that Pilones was not only Identified by Ilagan but at the confrontation in the
police precinct between accuser and accused, Pilones, as the accused, just kept silent and did not
deny Ilagan's accusation and the Identification made by Renolia's mother. "He who remains
silent when he ought to speak cannot be heard to speak when he should be silent" (31 C.J.S.
494). Rule 130 of the Rules of Court provides:
SEC. 23. Admission by silence. Any act or declaration made in the presence
and within the observation of a party who does or says nothing when the act or
declaration is such as naturally to call for action or comment if not true, may be
given in evidence against him.
Silence is assent as well as consent, and may, where a direct and specific accusation of crime is
made, be regarded under some circumstances as a quasi-confession. An innocent person will at
once naturally and emphatically repel an accusation of crime, as a matter of self-preservation and
self-defense, and as a precaution against prejudicing himself. A person's silence, therefore,
particularly when it is persistent, will justify an inference that he is not innocent. (Underhill's
Criminal Evidence, 4th Ed. p. 401).
Appellant Pilones contends that the trial court erred in not granting his motion for new trial based
on newly discovered evidence, which is the affidavit of Arturo Pangan, a detainee in the city jail
of Manila. Pangan declared in his affidavit that in the "riot", clash or encounter (salakay o
sagupaan) on April 9, 1970 between the residents of Barrio Puso and the residents of Labasan
Bukid, he and Romy Pilones, a brother of Manuel Pilones, were together and he saw that
Antonio Renolia and Nicanor Ilagan were shot by Aquilino Pingol with a .22 caliber rifle; that
Pingol was in the company of Danny and Nilo Garcia, alias Nilong Bulag, and that at that time
Manuel Pilones was in Olongapo City.
It is evident from Pangan's affidavit that he was referring to another incident. Pangan was
referring to a riot or rumble between two groups of persons. Ilagan did not testify to any rumble

or tumultuous affray between the residents of two places. He testified simply to a shooting at F.
Posadas Street, Punta, Sta. Ana when he came out of the house where a vigil for the dead was
being held.
Moreover, if according to Pangan, Romy Pilones,. the brother of appellant Manuel Pilones, was
with Pangan on that occasion, the alleged newly discovered evidence could have been presented
by the appellant during his trial. His brother, Romy, could not have been ignorant of what Arturo
Pangan knew and Romy could have informed Manuel Pilones earlier that the assailant of Ilagan
and Renolia was Pingol.
The trial court did not err in denying the motion for new trial.
We are convinced that Pilones was sufficiently Identified by Ilagan as the person who shot him
and Renolia. Pilones has not shown any reason as to why Ilagan would accuse him of murder and
frustrated murder. There is no showing that Ilagan had connived with Patrolman Lasia whom
Pilones believes is the one responsible for his arrest, to frame up the accused.
No motive was established as to why Pilones shot Ilagan and Renolia. The shooting can be
characterized as purely a mischievous act of deviltry committed by a jobless and lawless person
who did not know of any better way of using his time.
The trial court erred in holding that the crime as to Ilagan is frustrated murder. The wound in his
knee was not Sufficient to cause his death. The crime is only attempted murder. The accused did
not perform all the acts of execution that would bring about the death of Ilagan.
WHEREFORE, the lower court's judgment is affirmed with the modification that in Criminal
Case No. 171(70), Pilones is convicted of attempted murder and is sentenced to an indeterminate
penalty of three (3) years ofprision correccional medium, as minimum, to six (6) years and one
(1) day of prision mayor Minimum, as maximum, and to pay an indemnity to Nicanor Ilagan. in
the sum of two thousand pesos.
The term "life imprisonment" used by the trial court should be changed to reclusion perpetua. It
is the latter term that carries with it the imposition of the accessory penalties. (People vs. Mobe,
81 Phil. 58; Art. 73, Revised Penal Code). Costs against the appellant.
SO ORDERED.
Fernando, Barredo, Concepcion, Jr. and Santos JJ., concur.
Antonio, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5848

April 30, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the defendantappellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the
person of Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, 1
month, and 11 days of prision mayor, to 14 years, 8 months, and 1 day of reclusion temporal, to
indemnify the offended party Tan Siong Kiap in the sum of P350, without subsidiary
imprisonment in case of insolvency, and to pay the costs. The case was appealed to the Court of
Appeals, but that court certified it to this Court under the provisions of section 17 (4) of Republic
Act No. 296, on the ground that the crime charged was committed on the same occasion that the
defendant-appellant had committed crime of murder, with which the defendant-appellant was
also charged.
The evidence for the prosecution shows that early in the morning of September 3, 1949, the
defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he
started firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan
Siong Kiap, who was in the store and saw the accused enter and afterwards fire a shot at Jose Sy,
asked the defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned around
and fired at him also. The bullet fired from defendant-appellant's pistol entered the
rightshoulder of Tan Siong Kiap immediately ran to a room behind the store to hide. From there
he still heard gunshot fired from defendant-appellant's pistol, but afterwards defendant-appellant
ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He
stayed there from September 3 to September 12, 1949, when he was released upon his request
and against the physician's advice. He was asked to return to the hospital for further treatment,
and he did so five times for a period of more than ten days. Thereafter his wound was completely
healed. He spent the sum of P300 for hospital and doctor's fees.
The defendant-appellant shot two other persons in the morning of September 3, 1949, before
shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September

5 information was received by the Manila Police Department that defendant-appellant was in
custody of the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V.
Lomotan proceeded to Tarlac. There he saw the defendant-appellant and had a conversation with
him. On this occasion defendant-appellant and had a conversation with him. On this occasion
defendant-appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian, and
Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the pistol used by the defendantappellant, 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 defendant-appellant 3 against the persons of Tan Siong
Kiap, Ong Pian, and Jose Sy. This written statement was taken down on a typewriter and
afterwards signed by the defendant-appellant in both his Chinese and Filipino names, the latter
being Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months prior to September 3,
1949, he was employed as an attendant in a restaurant belonging to Ong Pian. Defendantappellant's wife by the name of Vicenta was also employed by Ong Pian's partner, Eng Cheng
Suy. Prior to September 3 the relatives of his wife had been asking the latter for help, because
her father was sick. Defendant-appellant asked money from Ong Pian, but the latter could only
give him P1. His wife was able to borrow P20 from her employer, and this was sent to his wife's
parents in Cebu. Afterwards defendant-appellant was dismissed from his work at the restaurant
of Ong Pian, and he became a peddler. Ong Pian presented a list of the sums that defendantappellant had borrowed from him, and these sums were deducted from the salary of his wife.
Defendant-appellant did not recognize these sums as his indebtedness, and so he resented Ong
Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before September 3, 1949,
defendant-appellant had been able to realize the sum of P70 from the sales of medicine that he
peddled. He laid his money in a place in his room, but the following morning he found that it had
disappeared from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the
discovery of the loss of money, told defendant-appellant that he must have given the money to
his wife, and that nobody had stolen it. After this incident of the loss, the defendant-appellant
used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the money had not been
actually stolen, but that he lost it in gambling. Because of these accusations against him, he
nurtured resentment against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the
possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol and
tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there shot Ong
Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy and Tan
Siong Kiap were, and there he fired at them. Then he escaped to Legarda Street, in Sampaloc,
where he borrowed P1 from his relatives. From there he went to Malabon, to thehouse of his
mother, to whom he told he had killed two persons and from he asked money.

The foregoing is the substance of the written declaration made by the defendant-appellant in
Exhibit D on September 6, 1949. At the time of the trial, however, he disowned the confession
and explained that he signed it without having read its contents. He declared that it was not he
who shot the three victims, but it was one by the name of Chua Tone, with whom he had
previously connived to kill the three other victims. He introduced no witnesses, however, to
support his denial. Neither did he deny that he admitted before Captain Lomotan having killed
the three persons, or having been found in Tarlac in possession of the caliber .45 pistol, Exhibit
C, and itsmagazine, Exhibit C-1. In his cross-examination he admitted many of the incidents
mentioned in the confession, especially the cause of his resentment against his victims Ong Pian,
Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him guilty of the crime
charged.
On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding
that Tan Siong Kiap received the shot accidentally from the same bullet that had been fired at
Jose Sy, and in finding that defendant-appellant has committed a crime distinct and separate
from that of murder for the slaying of Jose Sy. We find no merit in this contention. According to
the uncontradicted testimony of the offended party Tan Siong Kiap, when the latters saw
defendant-appellant firing shots he asked him why he was doing so, and the defendant-appellant,
instead of answering him, turned around and fired at him also. It is not true, therefore, that the
shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We
also find no merit in this contention. The evidence submitted to prove the charge consists of: the
uncontradicted testimony of the victim himself; the admissions made verbally by the 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
doctor's fees, and that he was confined in the hospital for nine days. The above facts stand
uncontradicted. This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty only of less serious
physical injuries instead of the crime of frustrated murder as defendant-appellant admitted in his
confession in the open court that he had a grudge against the offended party, and that he

connived with another to kill the latter. The intent to kill is also evident from his conduct in
firing the shot directly at the body of the offended party.
But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal,
because it did not touch any of the vital organs of the body. As a matter of fact, the medical
certification issued by the physician who examined the wound of the offended party at the time
he went to the hospital, states that the wound was to heal within a period of fourteen days, while
the offended party actually stayed in the hospital for nine days and continued
receiving treatment thereafter five time for the period of more than ten days, or a total of not
more than thirty days. The question that needs to be determined, therefore, is: Did the defendantappellant perform all the acts of execution necessary to produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs.
Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually
commit all the acts of execution necessary to produce the death of his victim, but that it is
sufficient that he believes that he has committed all said acts. In the case of People vs.
Dagman, supra, the victim was first knocked down by a stone thrown at him, then attacked with
a lance, and then wounded by bolos and clubs wielded by the accused, but the victim upon
falling down feigned death, and the accused desisted from further continuing in the assault in the
belief that their victim was dead. And in the case of People vs. Borinaga, supra, the accused
stabbed his intended victim, but the knife with which he committed the aggression instead of
hitting the body of the victim, lodged in the back of the chair in which he was seated, although
the accused believed that he had already harmed him. In both these cases this Court held that of
the crime committed was that of frustrated murder, because the subjective phase of the acts
necessary to commit the offense had already passed; there was full and complete belief on the
part of the assailant that he had committed all the acts of execution necessary to produce the
death of the intended victim.
In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but
he was able to escape and hide in another room. The fact that he was able to escape, which
appellant must have seen, must have produced in the mind of the defendant-appellant that he was
not able to his his victim at a vital part of the body. In other words, the defendant-appellant knew
that he had not actually all the acts of execution necessary to kill his victim. Under these
circumstances, it can not be said that the subjective phase of the acts of execution had been
completed. And as it does not appear that the defendant-appellant continued in the pursuit, and as
a matter of fact, he ran away afterwards a reasonable doubt exist in our mind that the defendantappellant had actually believed that he has committed all the acts of execution or passed the
subjective phase of the said acts. This doubt must be resolved in favor of the defendantappellant.
We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as
charged in the information. We only find him guilty of attempted murder, because he did not
perform all the acts of execution, actual and subjective, in order that the purpose and intention
that he had to kill his victim might be carried out.

Therefore, the judgment appealed from should be, as it is hereby, modified and the defendantappellant is found guilty of the crime of attempted murder, and the sentence imposed upon him
reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prision
correccional to 10 years of prision mayor. In all other respects the judgment is affirmed. With
costs against the defendant-appellant.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-8465 December 29, 1913
THE UNITED STATES, plaintiff-appellee,
vs.
TE TONG (alias TUGA), defendant-appellant.
Isidro Vamenta, for appellant.
Attorney-General Villamor, for appellee.

MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu convicting the accused
of the crime of attempted bribery and sentencing him to pay a fine of P6,000 pesetas, an
additional fine of 750 pesetas, with subsidiary imprisonment in case of insolvency, and declaring
confiscated the P500 which constituted the sum offered as the bribe; with costs.
It appears that on the 28th day of August, 1912, A. J. Robertson was a police official known as
a comandante of the Province of Cebu, having his official residence in Cebu, the capital of said
province. On said date the two Chinamen Yap Shut and Te Tong together with others, were
surprised in a gambling game known as jueteng and were arrested and charged with gambling.
At the time of making the arrest the police officials seized various books belonging to the person
in charge of the game, together with other articles and utensils used therein. These books and
articles were kept under the personal supervision of Comandante Roberston, who placed them in
an iron safe in his office. On the night of the 30th of August an unknown Chinaman was found
by Robertson conversing with his Chinese cook in the Kitchen. Roberston asked the cook who
the Chinaman was. In reply the cook informed him that the Chinaman desired to speak with him
regarding certain books which had been seized during the gambling raid made just previously,
saying that certain interested Chinamen desired to be allowed to remove the books from
Robertson's possession and substitute others in their place. Robertson thereupon agreed to make
the substitution provided that he was paid a sufficient sum of money therefor. Thereupon the
unknown Chinaman departed.
On the night of the 1st of September following, the accused Te Tong went to
Robertson's house saying to him that he brought with him a sum of money as a consideration for
the substitution of the books. Prior to that time Roberston had made arrangements with two
members of the police force to place themselves secretly in a position where they could see and
hear all that passed between him and the Chinaman. Robertson lighted the lamp, opened his iron

safe and took out the books. The Chinaman Te Tong thereupon began to examine the books,
picking out two of the larger ones, they being those that contained evidence very damaging to his
case. After having picked out the books Te Tong delivered to Robertson other books similar in
appearance which were to be used as substitutes. After the substitution had been made Robertson
asked Te Tong for the money which he had offered to pay for the substitution. Te Tong answered
that the money was at his house; but Roberston insisted upon immediate payment, and the
Chinaman thereupon draw from his pocket a roll of bills amounting to P500 and delivered it to
Robertson. As the Chinaman started to leave the office Robertson called to the two policemen
who came forward and stated that they had seen and heard all that had transpired. The Chinaman
was then arrested.lawphil.net
The facts are proved beyond shadow of doubt. The only question is whether the crime is
attempted, frustrated, or consummated bribery. In similar cases we have held that crime to be
attempted. (U. S. vs. Sy-Suikao, 18 Phil. Rep., 482; U. S. vs. Paua, 6 Phil. Rep., 740; U. S., vs.
Camacan, 7 Phil. Rep., 329; U. S. vs. Tan Gee, 7 Phil. Rep., 738.)
In the case of United States vs. Sy-Suikao, above, it appeared that the defendant offered an
officer of the Bureau of Internal Revenue P5 a barrel for each and every barrel of spirits which
that officer would permit the defendant to withdraw from the warehouse in which it was stored
without exacting the taxes which under the law the defendant would otherwise have been obliged
to pay. The officer pretended to accept the offer and to enter into the proposed agreement, but, as
a matter of fact, reported the matter to his superiors and procured the arrest of the defendant after
five barrels of spirits had been removed from the warehouse under the agreement. The crime was
held to be attempted bribery.
In the case of United States vs. Paua (6 Phil., Rep., 740), the court dealt with a case in which the
accused paid to one Frank C. Lane, inspector of bulls and boilers of the customhouse of Manila,
the sum of P200 as a guaranty of an agreement to pay P500 in case said Lane would issue a
certificate for the steamer Irua, although the said steamer did not then fulfill the conditions
required to receive a certificate to go to sea. While pretending to accept said sum Lane was in
reality trying to entrap the accused and immediately thereafter reported the matter to his
superiors and to the police. The crime in that case was held to be attempted bribery.
In the case of United States vs. Camacan (7 Phil. Rep., 329) it appeared that certain Constabulary
officers were set to guard a corral in which was kept a considerable number of carabaos. On the
night of the day on which the Constabulary officers took possession of the corral Camacan
approached one of the officers and offered him P40 for the privilege of removing from the corral
four of the carabaos. The officer accepted the agreement. The P40 was paid, P10 in cash and a
promissory note for P30. The carabaos were not, however, in reality delivered to the accused, the
Constabulary officer seeking simply to entrap him. The crime committed in the case was held to
be attempted bribery.
The case of United States vs. Tan Gee 7 Phil. Rep., 738) was of a similar nature, and the crime in
that case was held to be that of attempted bribery.1awphi1.net

While there is some authority to the contrary, we are of the opinion that we should follow the
substantially uniform holding of this court which declares the crime to be attempted bribery.
The judgment is affirmed, with costs against the appellant.
Arellano, C.J., Johnson, Carson and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-62439 October 23, 1984
GREGORY JAMES POZAR, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, respondent.
Macario C. Ofilada, Jr. for petitioner.
Gil Venerando R. Racho collaborating counsel for petitioner.
The Solicitor General for respondent.

GUERRERO, J.:+.wph!1
In an Information dated July 22, 1980 and filed with the City Court of Angeles City, Branch I,
docketed thereat as Criminal Case No. CAT-326, petitioner, an American citizen and a
permanent resident of the Philippines, was charged with the crime of Corruption of a Public
Official, allegedly committed as follows: t.hqw
That on or about the 17th day of December, 1979, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being then an applicant for probation after he was convicted of an
offense by a competent court, did then and there willfully, unlawfully, and
feloniously give to the complainant, Mr. Danilo Ocampo, the City Probation
Officer, the sum of P100.00 in a paper bill with Serial Nos. BC530309, under
circumstances that would make the said City Probation Officer Mr. Danilo
Ocampo liable for bribery.

ALL CONTRARY TO LAW.

Upon arraignment, petitioner pleaded not guilty to the said information and, after trial, the City
Court inits decision of May 15, 1981 found the petitioner guilty of the crime of corruption of a
public official, the dispositive portion of which reads: t.hqw
WHEREFORE, the Court finds the accused Gregory Pozar guilty of the offense
of Corruption of a Public Official as charged in the Information, and the Court
pursuant to Article 212, in relation to Article 211 of the Revised Penal Code,
hereby sentences the accused Gregory James Pozar to an imprisonment of three
(3) months and one (1) day of Arresto Mayor, and hereby censures him for his
actuation in this matter, with costs against the accused.
The one hundred peso bill is hereby forfeited in favor of the Republic of the
Philippines.
SO ORDERED.1wph1.t
The decision was appealed to the Court of Appeals (now In termediate Appellate Court) and
subsequently, the appellate court affirmed the same in toto. Petitioner's motion for
reconsideration was denied on October 19, 1982 and on December 21, 1982, petitioner filed the
instant petition for review of the decision of the respondent court, relying on the constitutional
precept that "In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved." (Article IV, Sec. 19), and that the State, having the burden of establishing all
the elements of the crime with which the accused is charged, must prove the guilt of the accused
beyond reasonable doubt, has failed to present and establish the required quantum of proof
against the accused petitioner, hence he is entitled to an acquittal. .
The evidence for the prosecution are stated in the decision of the respondent court,
thus: t.hqw
The prosecution presented as its witnesses Mr. Ricardo Manalo, Mrs. Primitiva
Francisco and Mr. Danilo Ocampo. Upon the other hand, the defense placed on
the witness stand appellant himself and his counsel Atty. Reynaldo Suarez.
Ricardo Manalo, Clerk at the Probation Office of Angeles City, declared that he
started working at the Probation Office since May 2, 1978 and came to know
appellant because the latter had gone to said office in connection with his
application for probation; that at about noontime of December 17, 1979, appellant
came to the office looking for Probation Officer Danilo Ocampo and since the
latter was out at the time, appellant gave him a closed envelope bearing the name
of Ocampo for delivery to the latter; that two days later, he gave the envelope to
Ocampo who opened the same in his presence; that the envelope contained some
official papers connected with appellant's application for probation and attached
thereto was a hundred peso bill; that Ocampo then remarked: 'This s something
bad that the opening of the envelope was done on December 19, 1979; that

Ocampo kept the envelope and its contents, including the one hundred peso bill,
but within a week's time gave them to him with instructions to give the same to
appellant but the latter never came to the office and so he returned them to
Ocampo; that although he later saw appellant about two weeks after December
17, 1979, when the latter came to the office to sign some papers, he never
mentioned to appellant the one hundred peso bill (pp. 2-16, t.s.n., September 16,
1980)
Manalo further declared that at the nine the envelope with the one hundred peso
bill was given to him by appellant for delivery to Ocampo, he already had an
inkling or knowledge that the Probation Office will recommend for the grant of
appellant's application for probation because he was the one who makes the final
typing of a post, sentence investigation report and before said final typing
Ocampo usually talks to him, so that he knows whether the recommendation was
for a grant or denial of an application (pp. 16-19, t.s.n., September 16, 1980).
Mrs. Primitiva Francisco, Assistant Probation Officer of the Angeles City
Probation Office, declared that she knows appellant because the latter was one of
the applicants for probation in 1979 and she was the one assigned to investigate
appellant's case; that as Assistant Probation Officer in the Investigation of
applications for probation and in the case of appellant, she requested him to
submit certain pertinent documents required by their office, such as barangay,
police and court clearances, residence certificate, etc.; that she prepared
appellant's post-sentence Investigation Report (Exhs. "B" to "B-5") that she first
saw appellant on December 7, 1979, when she interviewed him on his social
and personal history and his version of the offense, among others; that she gave
the list of documents which are to be submitted to the office; that the second time
she saw appellant was on December 21, 1979 but appellant was out at the time
and when she saw that he was in his car that broke down in front of the
Pampaguena she tried to can him but the car left as she was about to reach the
place (pp. 2-21, tsn, January 26, 1981).
Mrs. Francisco further declared that at the time she saw appellant on December
21, 1979, the latter was asking person to leave for Baguio City but she told him to
talk with Probation Officer, Mr. Ocampo, anent the matter; that she then prepared
a draft of the Post-Sentence Investigation report and thereafter had a conference
with Ocampo who told him not to delete the bribery incident from the report; that
it was first from Manalo and later from Ocampo that she became aware of the
bribery or more accurately corruption of a public official committed by appellant
(pp. 21-25, t.s.n., January 26, 1981).
The third prosecution witness was complaint himself Danilo Ocampo, who
declared that he has been the Probation Officer of an Angeles City, Probation
Office since 1977 and that his employees thereat were Ricardo Manalo, Primitiva
Francisco and Ramon de Leon; that at about 9:00 o'clock in the morning of
December 19, 1979, he received a closed letter envelope from his clerk. Manalo,

at the Probation Office at Merlan Building, Angeles City, Manalo informing him
that the same came from appellant; that he opened the envelope on the presence of
Manalo and found that the same contained xerox copies of the passport (Exh.
"D") and visa (Exh. "D-1") of appellant and inserted with said documents. was a
hundred peso bill with Serial No. BC530309 (Exh. "A-l"); that the envelope given
him by Manalo was addressed to him Mr. Danilo Ocampo, Probation Officer, in
handwritten for that he could not, however, produce said envelope the same
having been misplaced that he kept the one hundred peso bill as the same was an
evidence against appellant; that when he met Atty. Reynaldo Suarez, appellant's
counsel at the Angeles City Court on January 14, 1980, he told the latter about the
envelope received from appellant containing the passport, visa and the one
hundred peso bill inserted with said documents and intimated to the lawyer that
the client should not have inserted said one hundred peso bill (pp. 46-57, t.s.n.
September 16, 1980).
Ocampo further declared that the Post-Sentence Investigation Report was
prepared by Mrs. Francisco who conducted the investigation; that the first time he
saw appellant was on December 10, 1979, when the latter was seeking permission
to go to Baguio City and being a foreigner, he required him to submit to his office
copies of the latter's passport and visa; that the second time he met appellant was
in March, 1980, when the hearing of appellant's application for probation was
conducted at Branch I of the Angeles City Court; that he never required appellant
to give money, so that when he saw the one hundred peso bill (Exh. "A") in the
envelope handed him by Manalo, he was very much surprised; that he intended to
confront appellant but was unable to do so but was able to inform Atty. Suarez,
appellant's lawyer, about the matter when he met him at the City Court; that at the
time the envelope containing the documents and money was handed to him on,
December 19, 1979, the Post-Sentence Investigation Report was not yet finished
and that the same was submitted to the City Court by Mrs. Francisco on February
5, 1980; that the fact that appellant enclosed a one hundred peso bill in the
envelope was mentioned in said report (pp. 60-73, t.s.n., September 16, 1980).
Ocampo further testified that at the time of the hearing of appellant's application
or petition for probation, the Presiding Judge of Branch I of the City Court held a
conference in the court's chamber with appellant's counsel the trial fiscal and
himself, during which they discussed the bribery incident mentioned in the report;
that the presiding judge of Branch I, after some clarifications regarding the
incident in question, suggested that coplainant should lodge a complaint against
appellant and the all should conduct the corresponding preliminary investigation
to determine whether there was a prima facie case (pp. 75-76, 82-86, t.s.n.,
September 16, 1980).
Finally, Ocampo declared that he approved the Post-Sentence Investigation
Report recommending the granting of appellant's application for probation,
notwithstanding the bribery or corruption incident mentioned in said report,
because appellant's act was not yet a disqualification under the law, as he was still

presumed innocent until he is found guilty by the court (pp. 90-91, t.s.n.
December 8, 1980).
The appealed decision tersely cited the evidence for the defense in the following
manner: t.hqw
The evidence for the defense is that the one hundred peso bill the accusedappellant placed in the envelope delivered to the Probation Officer was allegedly
intended to take care of the expenses in the xerox copying or reproduction of
documents that may be needed by the Probation Office. (p. 7, CA Decision).
Considering that the findings of fact in the decision of the respondent court which affirmed the
decision of the trial court, do not mention nor indicate the circumstances surrounding the
incident and the filing of the information against the petitioner other than the admitted fact that
the one hundred peso bill was placed in the envelope together with the visa and passport of the
petitioner which he handed on December 17, 1979 to Mr. Ricardo Manalo and which the latter in
turn handed on December 19, 1979 to Probation Officer Danilo Ocampo, in fairness to the
petitioner, We quote hereunder the decision of the trial court which recited the said
circumstances that led to the filing of the Information against the petitioner, to wit: t.hqw
From the evidence presented, the following facts appear to the court to be
indubitable; That the accused was convicted of the crime of less Serious Physical
Injuries, and the crime of Oral Defamation of the City Court of Angeles City,
Branch 1, and the said accused was sentenced to an imprisonment of 15 days of
Arresto Menor and to pay a fine of P50.00 and to pay the complaining witness the
amount of P500.00 as moral and exempt damages. After he was sentenced, he, on
November 28, 1979 filed an Application for Probation. That after filing the
application for Probation, the accused, together with his lawyer Atty. Reynaldo
Suarez, went to the Probation Office purposely to inquire for the requirements
need for his client's petition for probation. Unfortunately, Atty. Suarez and his
client did not reach the Probation Officer Mr. Danilo Ocampo. It was Mr. Manalo,
a clerk of the Probation Office, whom they reached, and they were re. requested
to come back to the office regarding their inquiry inasmuch as the Probation
Officer was not in the office. Later, Atty. Suarez called through the telephone the
Probation Office, and, on that occasion he was able to talk with the Probation
Inspector, Mrs. Primitiva Francisco. He was inquiring from Mrs. Francisco the
necessary documents regarding the application for probation of his client and Mrs.
Francisco suggested that he would come over the office in order to give him all
the necessary information. The lawyer just instructed Mrs. Francisco to give a list
of the requirements to Mr. Pozar, the accused, who was then in the, Office of the
Probation Officer, and accordingly, Mrs. Francisco handed to Mr. Pozar a list of
the documents needed in his probation (see Exhibit E for the prosecution, and
Exhibit 3 for the defense). It also appears that all the re. requirements listed in the
list given by Mrs, Francisco were given to Mrs. Francisco, and at times to Mr.
Manalo. The person who conducted the investigation was actually Mrs. Francisco.
On December 10, 1979, Pozar had an occasion to see the Probation Officer, Mr.

Danilo Ocampo, and in that meeting, aside from the fact that he was asking
permission from the Probation Officer to go to Baguio, the Probation Officer
required him to furnish the Probation Office the xerox copy of his visa, and his
I.D. picture, inasmuch as it was explained to him these were needed, he being a
foreigner. On December 17, 1979 Mr. Pozar went to the Probation Office looking
for the Probation Officer, and when the Probation Officer was not there, he
handed to Mr. Manalo an envelope address to the Probation Of officer and asked
and requested Mr. Manalo to give the same to Mr. Ocampo. It was on December
19,1979 when Mr. Manalo handed the envelope given by Mr. Pozar to Mr. Danilo
Ocampo, and when Danilo Ocampo opened it in the presence of Mr. Manalo, he
found enclose in the envelope a xerox copy of the applicant's passport, xerox copy
of his visa, and attached also with the same document was a one hundred peso bill
It would seem that Mr. Ocampo asked Mr. Manalo to keep the one hundred peso
bill and return it to Mr. Pozar, but when Mr. Pozar did not arrive to the office, Mr.
Manalo gave it back to Mr. Ocampo Mr. Danilo Ocampo kept the one hundred
peso bill but made it a point that this incident regarding the receiving of the one
hundred peso being be included in the post-sentence investigation report which
was being prepared by Mrs. Francisco. At that time when the one hundred peso
bill was given, the post-sentence investigation report was not yet finished. The
record shows that the same was submitted to the court only on February 8, 1980.
At the hearing of the application for probation in March 1980, when the Presiding
Judge of City Court of Angeles City, Branch 1, noted and saw from the report the
alleged incident of the accused's giving the one hundred peso bill he called for a
conference and in that conference, he suggested that the manner should be
investigated by the Office of the City F'iscal Acting upon such suggestion Danilo
Ocampo formally filed an Information Sheet against the accused Gregory Pozar
(Exhibit 2). It is also a fact admitted by the defense that after the one hundred
peso bill was handed and the Probation Officer was not able to return the same, he
informed Atty. Suarez at the sala of City Court Branch II sometime on January
14, 1980. (pages 8-9)
As stated earlier, petitioner was found guilty of the offense of Corruption of Public Official as
defined and penalized in the Revised Penn Code as follows: t.hqw
Art. 212. Corruption of Public Officials. The same penalties imposed upon the
officer corrupted, except those of disqualification and suspension, shall be
imposed upon any person who shall have made the offers or promises or given the
gifts or presents as described in the preceding articles.
The preceding Articles of the Revised Penal Code are Articles 210 and 211 which define and
penalize the offenses of direct bribery and indirect bribery, and they provide as
follows: t.hqw
Art. 210. Direct Bribery. Any public officer who will agree to perform an act
constituting a crime, in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by such officer,

personally or through the mediation of another, shag suffer the penalty of prision
correccional in its minimum and medium periods and a fine of not less than the
value of the gift and not more than three times such value, in addition to the
penalty corresponding to the crime agreed upon, ff the same shall have been
committed.
If the gift was accepted by the officer in consideration of the execution of an act
which does not constitute a crime, and the officer executed said act, he shall suffer
the same penalty provided in the preceding paragraph, and if said shall not have
been accomplished, the officer shall suffer the penalties of arresto mayor in its
maximum period and a fine of not less than the value of the gift and not more than
twice such value,
If the object for which the gift was received or promised was to make the public
officer refrain from doing something which it was his official duty to do, he shall
suffer the penalties of arresto mayor in its medium and maximum periods and a
fine not less than the value of the gift and not more than three times such value.
In addition to the penalties provided in the preceding paragraphs, the culprit shall
suffer the penalty of special temporary disqualification.
The provisions contained in the preceding paragraphs shall be made applicable to
assessors, arbitrators, appraisal and claim commissioners, experts, or any other
persons performing public duties.
Art. 211. Indirect Bribery. The penalties of arresto mayor, suspension in its
minimum and medium periods, and public censure shall be imposed upon any
public officer who shall accept gifts offered to him by reason of his office.
It is well to note and distinguish direct bribery from indirect bribery. In both crimes, the public
officer receives gift. While in direct bribery, there is an agreement between the public officer and
the giver of the gift or present, in indirect bribery, usually no such agreement exist. In direct
bribery, the offender agrees to perform or performs an act or refrains from doing something,
because of the gift or promise in indirect bribery, it is not necessary that the officer should do
any particular act or even promise to do an act, as it is enough that he accepts gifts offered to him
by reason of his office. (The Revised Penal Code by Luis P. Reyes, 1975 Ed., p. 332).
In the case at bar, We find that the Information against the petitioner charged that the accused
"did then and there willfully, unlawfully, and feloniously give to the complainant, Mr. Danilo
Ocampo, the City Probation Officer, the sum of one hundred (P100.00) pesos in a paper bill with
serial No. BC530309, under circumstances that would make the said City Probation Officer, Mr.
Danilo Ocampo, liable for bribery.
The trial court found the accused guilty of the offense of Corruption of a Public Official as
charged in the Information and pursuant to Article 212, in relation to Article 211 of the Revised
Penal Code, sentenced the accused to an imprisonment of three (3) months and one (1) day of

arresto mayor and public censure. This is erroneous. The trial court erred in finding the accused
guilty of the crime of Corruption of Public Official as consummated offense (which is affirmed
by the respondent appellant court) for it is clear from the evidence of the prosecution as recited
in both decisions of the trial and appellate courts, that the complainant Probation Officer did not
accept the one hundred peso bill Hence, the crime would be attempted corruption of a public
official. (See The Revised Penal Code by Justice Ramon Aquino, 1976 Ed., Vol. II, p. 1168,
citing the cases of Uy Matiao, 1 Phil. 487; Camacan 7 Phil. 329; Tan Gee, 7 Phil. 738; SyGuikao
18 Phil. 482; Te Tong, 26 Phil. 453; Ng Pek 81 Phil. 562; Ching, CA-G.R. No. 439-R, July 31,
1947). Attempted corruption of a public official is punished withdestierro and is cognizable by
inferior courts (See Revised Penal Code by justice Aquino, Vol. II, 1976 Ed., citing the cases of
Uy Chin Hua v. Dinglasan, 86 Phil. 617; Santos y Bautista, 87 PhiL 687; Dalao v. Geronimo, 92
Phil. 1942; Ng Pek 81 Phil. 562).
Be that as it may, the crucial point is whether the prosecution has established beyond reasonable
doubt that the one hundred peso bill was given to bribe and corrupt the City Probation Officer or
that it will be used to defray expenses in xeroxing or copying of whatever documents needed by
the Probation Office in connection with petitioner's application for probation then pending in
said office.
The evidence on record disclose that the petitioner was required by the Assistant Probation
Officer, Primitive Francisco, to submit in connection with his probation application the Court
Information ( complaint) Court decision, Custody Status (recognizance or bail bond), clearances
from the Police, the Court, Barangay Certificate, I.D. pictures (3 copies), residence certificate,
and told to report once a week on Mondays. (Exhibit "E"). This was on December 7, 1979.
Aside from these documents, the Probation Officer required of the petitioner on December 10,
1979 when the latter was asking permission to go to Baguio to submit to the office a copy of his
visa and passport. Mrs. Francisco to testified that the petitioner was asking permission from her
to leave for Baguio. And according to the petitioner, "during all the time he was applying for
probation, he made more or less 12 visits in the office as he was directed to report every Monday
at 10:00 o'clock in the morning. He reported for 6 to 7 consecutive weeks and there were times
that he went there unscheduled for conference and clarification of the various re. requirements he
needed. During all the time he went there, he met Manalo, Mrs. Francisco and Mr. Ocampo
himself. Mrs. Francisco and Mr. Ocampo interviewed him He submitted all the requirements to
the Probation Officer; at times, he submitted them directly to Mrs. Francisco, and at other times
to Mr. Manalo, and also to Mr. Ocampo. Other than those listed in the list given by Mrs.
Francisco, he was required to submit xerox copy of his passport, his visa and his pictures. He
explained that he gave the requirements to the person who was interviewing him, primarily Mrs.
Francisco, of the documents needed. Later, he submitted to the office xerox copy of the original
He likewise submitted his two passports, and later xerox copy of his passports. When Mrs.
Francisco was asking for the original, which documents are in the possession of his lawyer at his
office, he had to return to get the originals." (Decision of Trial Court, p. 5). Petitioner's travail is,
therefore, quite evident.
From the foregoing, We can fairly deduce that the procedure for processing petitioner's
application for probation in the Probation Office at Angeles City was not precise, explicit and

clear cut And since the accused petitioner is a foreigner and quite unfamiliar with probation rules
and procedures, there is reason to conclude that petitioner was befuddled, if not confused so that
his act of providing and advancing the expenses for whatever documentation was needed further
to complete and thus hasten his probation application, was understandably innocent and not
criminal.
In fine, the facts and circumstances on record amply justify and support the claim of the defense
as against the conjectures, speculation and supposition recited in the decision of the trial court
and quoted with approval in the appealed decision under review. The Government's own
evidence as indicated in the Post-Sentence Investigation Report that the giving of the one
hundred pesos ( P100.00) was done in good faith, is vital for it belies petitioner's criminal intent.
There being no criminal intent to corrupt the Probation Officer, the accused petitioner is entitled
to acquittal of the crime charged. We hold and rule that the prosecution has not proved the guilt
of the accused beyond reasonable doubt. There is not that moral certainty required to convict
him. Even the complainant himself, the Probation Officer, filed the complaint only on the
suggestion of the presiding judge of the Angeles City Court during the hearing on petitioner's
application for probation, the complaint having been filed in the City Fiscal's Office on June 10,
1980 after a lapse and delay of six (6) months.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment appealed from is hereby
REVERSED. The accused petitioner is hereby ACQUITTED. No costs.
SO ORDERED.1wph1.t
Concepcion, Jr., Escolin and Cuevas, JJ., concur.
Aquino, J., concurs in the result.
Abad Santos, J., took no part.
MAKASIAR, J., dissenting:
1. As stated by the Solicitor General the pretension of the petitioner that he was confused with
respect to the requirements and/or processing of his application for probation pending before the
complaining witness Probation Officer Danilo Ocampo of Angeles City, is incredible. As early
as December 7, 1979, about ten (10) days before December 17, 1979 (the delivery of the P100
peso bill inside a closed letter envelope petitioner was already interviewed by Mrs. Primitiva
Francisco, Assistant Probation Officer of the Probation Office of Angeles City, who gave him
the list of documents to be submitted to the office. Hence, petitioner already knew then what
papers were required of hint
2. His claim that the P100 peso bill contained in the aforesaid closed letter envelope was for
xerox copies of other documents that may be required of him by the Probation Office, is belied
by the aforesaid fact that as early as December 7, 1979, Assistant Probation Officer Francisco
already gave him the list of documents that he should submit to the Probation Office, and that on
December 10, 1979, Probation Officer Ocampo also required him to submit xerox copies only of

his passport and visa as he was a foreigner, in connection with his request for permission to go to
Baguio City.
3. If, as he alleged, the P100 bill was intended for xerox copies of other documents that may be
required of him, he should have, as stated by the Solicitor General in his comment and
memorandum, given the same to the clerk Ricardo Manalo of the Probation Office, with
instructions that the same should cover whatever xerox copies of other documents may be
needed. Or he should have attached or clipped the P100 bill to a note addressed to Probation
Officer Ocampo that the said money is to cover expenses for xerox copies of other documents
that may be required of him.
4. Petitioner could have just given the P100 bill to his lawyer, Atty. Reynaldo Suarez, with
instructions that the same should be paid for whatever xerox copies of other documents that may
be required of him in connection with his application for probation.
5. Petitioner saw Assistant Probation Officer Francisco on December 21, 1979; but on said date
petitioner did not bother to ask either Assistant Probation Officer Francisco on December 21,
1979; but on said date petitioner did not bother to ask either Assistant Probation Officer
Francisco or the Probation Clerk Ricardo Manalo, whether the P100 bill was spent for xerox
copies of other documents. He went there that day, December 21, 1979, precisely to reiterate his
request for permission to leave for Baguio City and Assistant Probation Officer Francisco
advised him to talk to Probation Officer Ocampo whom he did not even try to see that day,
December 21, 1979.
6. Petitioner could not presume that his application for probation would be favorably acted upon
because he was still then being subjected to an investigation by Assistant Probation petition
Officer Francisco who submitted her post-sentence report to the City Court only on February 5,
1980. Said report included the statement about the bribe money. Probation Officer Ocampo had
to recommend in March, 1980 approval of petitioner's application for probation; because at that
time he had not yet filed the complaint with the City Fiscal's Office for corruption of public
officer against petitioner who, as stressed by Probation Officer Ocampo, was presumed innocent
until adjudged guilty of such corruption,
Hence, the conviction of petitioner should be affirmed but only for attempted corruption of a
public officer, because Probation officer Ocampo did not accept the money; otherwise, said
probation officer would be equally guilty as the corruptor.

G.R. No. 13997, U.S. v. Ocampo, 39 Phil. 738

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

DECISION

March 8, 1919

G.R. No. 13997

THE UNITED STATES, plaintiff-appellee,
vs.
RUFINO RAMIREZ, VICTORIANO CORPUS and PLACIDO DE OCAMPO, defendantsappellants.
Gregorio Araneta for appellants.
Attorney-General Paredes for appellee.
MALCOLM, J.:
By appropriate information, Rufino Ramirez, Victoriano Corpus, and Placido de Ocampo were
charged in the Court of First Instance of the city of Manila with the crime of abduction with
force. The trial proceeded as to the defendants Corpus and De Ocampo, the other accused
Ramirez not yet having been arrested. The trial court found the two defendants guilty as
principals of the crime of frustrated abduction, with the aggravating circumstance of nocturnity,
compensated by the extenuating circumstance provided b article 11 of the Penal Code a
amended, and sentenced each of them to eight years and one day of prision mayor, with the
corresponding accessory penalties, and to pay one third of the costs. This is an appeal from that
judgment.
The facts established by the prosecution, no defense having been interposed, are the following:
Rufino Ramirez was, prior to October 13, 1916, an unsuccessful lover of a young lady named
Regina Tolentino. In view of his disappointment, Ramirez sought the aid of Victoriano Corpus
and Placido de Ocampo for the purpose of abducting the girl. On October 13, 1916, the three

defendants hired an automobile, it then being nightfall, and proceeded toward the district of
Santa Mesa, city of Manila, stopping at the Rotonda. Regina Tolentino, accompanied by a male
companion, Francisco Malabunga, and a female companion, Marcelina Tolentino, while walking
in Calle Santa Mesa, was suddenly grasped by Placido de Ocampo. Marcelina Tolentino and
Regina Tolentino, amidst screams, struggled against Placido de Ocampo but without success.
Regina was forcibly taken to the automobile where Rufino Ramirez waited for her. Victoriano
Corpus, during this occurrence held Francisco Malabunga. To prevent Regina Tolentino from
screaming any further, De Ocampo and Ramirez placed a handkerchief over her mouth. while in
the automobile Regina fainted. Thus senseless the girl was taken by the accused in the
automobile to a place near the cemetery of Balic-balic. Upon reaching this place, the chauffeur
because of his suspicions deliberately ran the automobile into the mud, telling the accused that
the automobile could not go any further. The two defendants thereupon, together with Rufino
Ramirez, left the car and took Regina to the rice paddies. The girl who had just come to her
senses renewed her screaming. The neighboring people responded promptly to the outcries for
help, and the accused, upon seeing that many people were coming to the aid of the girl, fled.

Appellant's assignments of error divide into three main issues: (1) The refusal of the trial court to
continue the case; (2) the presence of the essential elements that go to constitute the crime of
abduction with force; and (3) the degree of the offense.

1. CONTINUANCES. - The attorney for the appellants contends that the court erred in refusing
to grant a further continuance with a view to giving the defense an opportunity to look for their
material witness, who in the case at bar was also one of the accused. It is claimed by counsel that
"It is the right of every accused to be able to present a witness any person who he believes to be
necessary for his defense," and that to deprive him of said right would be tantamount to denying

him one of the means allowed by law for his defense. Before discussing this error let use notice
briefly what the facts are.

The information was filed by the assistant fiscal of the city of Manila on October 18, 1916. The
case came to trial on April 3, 1918. Between the day when the information was presented and the
day of the trial about sixteen months had elapsed, during which time the defendants had obtained
seven continuances. This was the situation when the case was called, and counsel for the defense
asked for further time to find the coaccused Ramirez. This again was the situation when after the
prosecution had presented its evidence counsel the motion and the judge denied the same.

Applications for continuances are addressed to the sound discretion of the court. In this respect,
it may be said that the discretion which the trial court exercises must be judicial and not
arbitrary. It is the guardian of the rights of the accused as well as those of the people at large, and
should not unduly force him to trial, nor for light causes jeopardize the rights or interests of the
public. Where the court conceives it to be necessary for the more perfect attainment of justice, it
has the power upon the motion of either party to continue the case. But a party charged with a
crime has no natural or inalienable right to a continuance.

The ruling of the court will not be disturbed on appeal in the absence of a clear abuse of
discretion. When the discretion of the court is exercised with a reasonable degree of judicial
acumen and fairness, it is one which the higher court is loathe to review or to disturb. The trial
judge must be to a certain extent free to secure speedy and expeditions trial when such speed and
expedition are not inconsistent with fairness. Since The court trying the case is, from personal
observation, familiar with all the attendant circumstances, and has the best opportunity of
forming a correction opinion upon the case presented, the presumption will be in favor of its
action. It would take an extreme case of abuse of discretion to make the action of the trial court a
denial of due process of law.

Other jurisdictions have held that three things are necessary to put off a trial on account of the
absence of a witness: First, that the witness is really material and appear to the court to be so;
second, that the party who applies has been guilty of no neglect; and third, the witness can be at
the time to which the trial has been deferred, and incidentally , that no similar evidence could be
obtained. (Dyer vs. Rossy [1916], 23 Porto Rico 718.) A mere allegation that the postponement
was requested on the ground that a witness important to the defendant's case was absent, is not
sufficient to warrant the assertion that the court improperly exercised the discretionary power
conferred upon it by law. (People vs. Enrique Otero & Co. [1912], 18 Porto Rico 51.) There must
be, in any case, in order to sustain the motion, facts from which the court can infer that there is a
reasonable prospect that the attendance of the witness, or his testimony, can be procured at a
future day. (People vs. Ah Yute [1879], 53 Cal. 613.) It has been held not to be error to refuse a
continuance because of the absence of the accused's co-defendant then a fugitive from justice.
(People vs. Cleveland [1875], 49 Cal. 577; Ortiz vs. State [1912], 151 S.W. [Tex.] 1056.)

Rufino Ramirez, the coaccused, is admitted to be a fugitive from justice. Counsel, after seven
continuances had been granted in the lower court, nowhere purposes to have said witness before
the court at a specified time. At the trial the attorney upon being asked by the court to state
whether or not he could make certain the attendance of the witness replied as follows: "I cannot
bind myself to find for the reason that we do not know his whereabouts." If continuances could
be procured on the ground of the absence of one of the material witnesses without stating that the
witness can be brought before the court at a reasonable time in the future, the delays in the
administration of justice would soon become intolerable. Whilst great liberality should be
extended to persons charged with crime in preparing their defense and particularly in procuring
the attendance of witnesses, the rule must not be relaxed so as to defeat the ends of justice. (See
generally the California and Porto Rico decisions hereinbefore cited; U.S. vs. Jarandilla [1906], 6

Phil. 139; U.S. vs. Lorenzana [1908], 12 Phil. 64; Code of Civil Procedure, sec. 141, and 16
Corpus Juris, pages 460 et seq.)
It is held that the trial court committed no error in refusing to continue the case.

2. ABBUCTION OF ARTICLE 445 OF THE PENAL CODE ANALYZED. - Article 445 of the
Penal Code reads:

The abduction of a woman against her will and with lewd designs shall be punished by reclusion
temporal.
The same penalty shall be imposed in every case if the female abducted be under twelve years of
age.

Both the civil and the common of abduction is one "summente grave y odioso" (highly serious
and detestable.) The penal law regarding abduction, says the supreme court of Spain, was
intended to punish the offense against public morality and the insult to the family of the
abduction girl. (Decisions of the supreme court of Spain of November 30, 1876; June 19, 1891;
and June 15, 1895; U.S. vs. Bernabe [1912], 23 Phil. 154.) The abduction statutes, say the
American authorities, were intended for the preservation of the peace of the home and the virtue
of inexperienced females, and to save the members of the family from sorrow and disgrace.
(People vs. Fowler [1891],88 Cal. 136; State vs. Overstreet [1890], 43 Kan. 299; People vs.
Bristol [1871], 23 Mich. 118; State vs. Chisenhall [1890], 106 N.C. 676; Rex vs. Pigot, 12
Modern 516, 88 Reprint, 1488.) The three elements in the crime punished by article 445 of the
Penal Code are: (1) That the person abducted b a woman; (2) that the abduction must have been
against the will of the woman; and (3) that the abduction must have been for lewd or unchaste
designs.(5 Viada, Codigo Penal 143; U.S. vs. Borromeo [1912], 23 Phil. 279.)
That the first two elements are here present is incontestable. The "taking," as contemplated by
the Code, is demonstrated by the force used in snatching the offended girl from a street in the

city of Manila and carrying her to the rice paddies some distance away. Stress is laid by counsel
for appellants on the absence of the third essential element, namely, lewd or unchaste designs.
Necessarily, if this specific element is lacking, the defendant must be acquitted. (U.S. vs. Caido
[1905], 4 Phil. 217.) It takes the concurrence of all three elements to constitute the crime.
In a criminal action for abduction, in order to demonstrate the presence of the lewd designs,
actual illicit criminal relations with the person abduction need not be shown. (Decision of the
supreme court of Spain, June 19, 1891; U.S vs. Bernabe, supra; U.S. vs. Meneses [1909], 14
Phil. 151.) The intent to seduce the girl is sufficient. The evil purpose need not be established by
positive evidence but may be inferred from acts or conduct proved. (People vs. Marshall [1881],
59 Cal. 386.)
The presence of the lewd designs is here revealed by the actions of the accused. Among other
indications of this intent can be mentioned the taking of the girl at night by the use of force and
threats to overcome her resistance; the act of embracing her while in the automobile; the
proposition to go to a house in Balic-balic; the beating of the chauffeur who did not want to start
the engine of the automobile, and the fact that Rufino Ramirez had been making love to the girl
prior to the abduction.

It is held that the trial court committed no error in finding the accused guilty of a violation of
article 445 of the Penal Code.

3. DEGREE OF THE OFFENSE. - It being conceded that sexual intercourse is not necessary in
order to commit abduction wherein lewd designs is an essential element, the crime is a
consummated one, for the reason that the evil which the law contemplated in providing for the
offense has been effected. Although Rufino Ramirez appears as the moving spirit in the
commission of the crime, nevertheless the present appellants Placido de Ocampo and Victoriano

Corpus are guilty as principals in that they took a direct part i the commission of the crime.
(Decision of the supreme court of Spain of March 10, 1897; U.S. vs. Borromeo, supra.)
In the commission of the crime there was present the aggravating circumstance of nocturnity. It
is clear that the appellants selected the night time for their detestable act, knowing that they
could not accomplish it as easily or at all in the day time.

The trial court gave the appellants the benefit of the provisions of article 11 of the Penal Code as
amended by Act No. 2142. This Court holds that the benefits of article 11 of the Penal Code as
amended should not be extended to persons who commit crimes against chastity.

There being present in the commission of the crime one aggravating circumstance not
compensated by any mitigating circumstances, the penalty provided by article 445 must be
imposed in the maximum degree. In consonance with this result, judgment is reversed and each
defendant and appellant is sentenced to seventeen years, four months, and one day of reclusion
temporal, together with the corresponding accessory penalties, and to pay one third of the costs
in the first instance and one half of the costs in this instance. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Street, Avancea and Moir, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-48019-22 June 29, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEONARDO BASAS, NESTOR GREGORIO, ROGELIO CADAG and GERARDO
MAINGAT, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Sabina Agcaoili Suarez for defendants-appellants.

AQUINO, J.:
Leonardo Basas, Nestor Gregorio, Rogelio Cadag and Gerardo Maingat appealed from the
decision of the Court of First Instance of Manila, convicting them of rape and sentencing them
to reclusion perpetua and to indemnify Gloria Badilla in the sum of P10,000 (Criminal Cases
Nos. 26116-19). Maingat withdrew his appeal. (Resolution of November 10, 1980.)
The prosecution's evidence shows that at around seven-thirty in the evening of December 2, 1975
Gloria Badilla, 18 (Exh. F), a first year high school student, after alighting from a jeepney at
Marcos Road, Barrio Magsaysay, Tondo, Manila, encountered Leonardo Basas, Nestor Gregorio,
Rogelio Cadag and Gerardo Maingat.
Basas and Gregorio covered her mouth and dragged her to a vacant hut located in the Don Bosco
School compound at the corner of Marcos and Don Bosco Roads (See Sketch Exh.
C).lwphl@it She struggled to free herself from the clutches of her captors. She hit them with her
notebooks. Her efforts were in vain.
On reaching the hut, Basas and his companions removed her pink school uniform, consisting of a
blouse and skirt (Exh. B), and her panty and brassiere. The four, helping each other, held her
hands and feet, boxed her thighs, pulled her hair, and covered her mouth. She resisted and
shouted for help. They forced her to lie down. They removed their clothes and took turns in
sexually abusing her. While one was doing the act, she was being held by the others who touched
her breasts.
A boy named Ruben Valle, who acted as lookout, warned Basas and his companions that
Eugenio Villaruel and Graciano Montecillo were coming to the hut. ("May tao.") The four

malefactors scampered and fled. Villaruel and Montecillo advised Gloria to put on her clothes.
They brought her to Father Miguel, the rector of the Don Bosco School.
Gloria's parents were called. She and her parents, accompanied by Villaruel and Montecillo,
went to the house of the barangay chairman to report the matter. By coincidence, Ruben and the
four accused happened to be in the barangay chairman's house at that time because Ruben was
being investigated in connection with a stone-throwing incident.
Then and there, Gloria on that same night of December 2, 1975 pointed to the four accused as
her rapists. The barangay chairman entered the incident in his logbook (Exh. H). He brought
Gloria, her parents and the two rescuers to the police precinct for investigation. It was already
two o'clock in the morning when Gloria's statement was taken (Exh. E).
The next day Gloria was examined by Doctor Angelo S. Singian of the Manila police. He found
that there was an unsuccessful coitus on the preceding night because her hymen was "virginal
with no laceration" although there was a "fresh contusion of the hymen in the 8 o'clock position
with slight inflammation from the 6-9 o'clock position."
He certified that there was "hyperemia of the rest of the hymen and perihymeneal tissue"
(dilation of the blood vessels) but the vagina was negative for sperm cells (Exh. A). Doctor
Singian testified that there could have been penetration of the labia majora but not deep enough
to lacerate the hymen.
The story of the four accused was that at the time the alleged rape was being committed they
were "chasing each other" in the football field of the Don Bosco compound (near the hut, as
shown in the sketch, Exh. C). They ran away because there was trouble: someone was caught
throwing stones. They went to the barangay chairman's house. They found out that the boy,
Ruben Valle, was the one who threw stones (p. 9, Appellant's Brief).
At that juncture, Gloria arrived at the barangay chairman's house. She fingered the four accused
as the persons who abused her. The barangay captain took them to the police station where they
were investigated. It may be noted that this version strengthens the case for the prosecution.
The trial court did not consider appellants' story as exculpatory. As already noted, it convicted
the accused of one crime of rape although they were separately charged with rape in four
informations.
Appellants Basas, Gregorio and Cadag contend in this appeal that the testimonies of Gloria and
Ruben were incredible, that appellants were not positively Identified and that their guilt was not
proven beyond reasonable doubt.
These contentions cannot be sustained. There is no reason to doubt the credibility of Gloria and
Ruben. The fact that the victim's hymen was not lacerated and that sperm cells were not found in
her vagina can be explained. The accused were teenagers who had not much experience in sexual
congress. They were too eager to have bodily contact with the victim. Their haste in performing
the act coupled with the resistance of the victim prevented any ejaculation or orgasm.

But it is undeniable that their organs penetrated the vagina although the penetration did not break
the hymen but only caused a contusion. The rape was consummated. (People vs. Royeras, L31886, April 29, 1974, 56 SCRA 666).
"The rupturing of the hymen is not indispensable to a conviction of the consummated crime of
rape; entry of the labia of the female organ without rupture or laceration is generally held to be
sufficient" (Syllabus, People vs. Hernandez, 49 Phil. 980). There must be proof of some degree
of entrance of the male organ within the labia of the pudendum. (People vs. Rivers, 147 Mich.
643).
"For as Lord Meadowbank said in a case in Scotland, 'Scientific and anatomical distinctions as to
where the vagina commences are worthless in a case of rape; it is enough if the woman's body is
entered; and it is not necessary to show to what extent penetration of the parts has taken place,
whether it has gone past the hymen, into what is anatomically called the hymen, or even so far as
to touch the hymen' " (Stewart on Legal Medicine, p. 137; State vs. Johnson, 91 Mo. 439, cited
in Hernandez case).
The testimonies of Gloria and Ruben prove beyond reasonable doubt appellants' complicity in
the rape. Their Identification was made within two hours after the perpetration of the acts
complained of. There is not a shadow of doubt as to their guilt.
The trial court erred in holding that there was only one rape. Apparently, it was appealed by the
excessiveness of the penalty in case the accused were convicted of four rapes.
It is settled that in multiple rape each defendant is responsible, not only for the rape committed
by him personally, but also for the rape committed by the others, because each one of them
cooperated in the consummation of the rape committed by the others, by acts without which it
could not have been accomplished (People vs. Villa, 81 Phil. 193, 197).lwphl@it Hence, four
rapes were committed in this case.
The Solicitor General submits that as the four rapes were aggravated by nocturnity and abuse of
superiority, four death penalties should be imposed on each defendant.
We hold that nocturnity is not aggravating. There is no clear evidence that it was purposely
sought by the accused.
The ruling in People vs. De Guzman and De la Cruz, 51 Phil. 105, that in rape perpetrated by
three persons abuse of superior strength is aggravating, is not applicable to this case because the
circumstance that the rape was committed by two or more persons was already taken into
account in fixing the penalty of reclusion perpetuato death for this kind of rape. (Art. 335,
Revised Penal Code.)
The death penalty is not imposable in this case. The parties and the trial court overlooked the fact
that the three appellants are entitled to the privileged mitigating circumstance of minority. Cadag,
Basas, and Gregorio were over 15 but below eighteen when the crime was committed, having

been born on February 23, August 8 and December 10, 1959, respectively (Exh. G). Hence, their
penalty must be lowered by one degree or to reclusion temporal. (Art. 68, Revised Penal Code).
The minimum of the indeterminate penalty imposable on them must be taken from prision
mayor medium and the maximum from reclusion temporal medium. As there were four rapes,
four indeterminate penalties must be imposed on them, subject to the three-fold rule and the
forty-year limit provided for in article 70 of the Revised Penal Code (People vs. Sendaydiego, L33252, etc., January 20, 1978, 81 SCRA 120,147).
WHEREFORE, the judgment of the trial court on the appellants Basas, Gregorio and Cadag is
modified. They are each sentenced to four indeterminate penalties of nine years of prision
mayor medium as minimum to fifteen years of reclusion temporal medium as maximum and to
pay solidarily Gloria Badilla an indemnity of P20,000. Costs de oficio.
Nevertheless, considering the facts of the case and having in mind that under a strict enforcement
of the law the total penalties might appear excessive, we bring this case to the attention of the
President of the Philippines, through the Minister of Justice, for the purpose of reducing the
penalties consistent with the ends of retributive justice and the manifest policy of the law to deter
the commission of rape.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion, Jr., Guerrero, Abad Santos, Plana, Escolin, Gutierrez,
Jr., De la Fuente and Cuevas, JJ., concur.
Makasiar and Relova, JJ., took no part.
Melencio-Herrera, J, is on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 129433

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:

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

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by
the court a quo to the extreme penalty of death, 5 hence this case before us on automatic review
under Art. 335 of the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went
down from the second floor of their house to prepare Milo chocolate drinks for her two (2)
children. At the ground floor she met Primo Campuhan who was then busy filling small plastic
bags with water to be frozen into ice in the freezer located at the second floor. Primo was a
helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she
heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose
pajamas or "jogging pants" and panty were already removed, while his short pants were down to
his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed
the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows
and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then
ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living
within their compound, to chase the accused. 8Seconds later, Primo was apprehended by those
who answered Corazon's call for help. They held the accused at the back of their compound until
they were advised by their neighbors to call the barangay officials instead of detaining him for
his misdeed. Physical examination of the victim yielded negative results. No evident sign of
extra-genital physical injury was noted by the medico-legal officer on Crysthel's body as her
hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and
assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against
him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly pulled him down causing both of them
to fall down on the floor. It was in this fallen position that Corazon chanced upon them and
became hysterical. Corazon slapped him and accused him of raping her child. He got mad but
restrained himself from hitting back when he realized she was a woman. Corazon called for help
from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente
punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards
the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not true. But Vicente kicked him instead.
When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his
back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon
him to take Primo to the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him
guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay
his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with human nature and experience. He
claims that it was truly inconceivable for him to commit the rape considering that Crysthel's
younger sister was also in the room playing while Corazon was just downstairs preparing Milo
drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the
episode happened within the family compound where a call for assistance could easily be heard
and responded to, would have been enough to deter him from committing the crime. Besides, the
door of the room was wide open for anybody to see what could be taking place inside. Primo
insists that it was almost inconceivable that Corazon could give such a vivid description of the
alleged sexual contact when from where she stood she could not have possibly seen the alleged
touching of the sexual organs of the accused and his victim. He asserts that the absence of any
external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters
his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that
she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas
and panty were supposedly "already removed" and that Primo was "forcing his penis into
Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a
woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel
was only four (4) years old when sexually molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended
party being below seven (7) years old. We have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is
the rupture of the hymen necessary; the mere touching of the external genitalia by the penis
capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the
act of touching should be understood here as inherently part of the entry of the penis into the
labias of the female organ and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if the
attacker's penis merely touched the external portions of the female genitalia were made in the
context of the presence or existence of an erect penis capable of full penetration. Where the
accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which
could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on
the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his
penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his
organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her
vagina. 13 Thus, touching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer
of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing
proof that the penis indeed touched the labias or slid into the female organ, and not merely
stroked the external surface thereof, for an accused to be convicted of consummated rape. 14 As
the labias, which are required to be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain
some degree of penetration beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area,e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner surface. The skin of the outer
convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin
skin which does not have any hair but has many sebaceous glands. Directly beneath the labia
majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for
rape to be consummated, 16 and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there
can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the
female organ,"17 but has also progressed into being described as "the introduction of the male
organ into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our
mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as
earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus
of proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo
and Crysthel. When asked what she saw upon entering her children's room Corazon plunged into
saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her
relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the
contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the
former was allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning
down the victim, while his right hand is holding his penis and his left hand is spreading
the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered
an unbridled observation impossible. Not even a vantage point from the side of the accused and
the victim would have provided Corazon an unobstructed view of Primo's penis supposedly
reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since
the legs and arms of Primo would have hidden his movements from Corazon's sight, not to
discount the fact that Primo's right hand was allegedly holding his penis thereby blocking it from
Corazon's view. It is the burden of the prosecution to establish how Corazon could have seen the
sexual contact and to shove her account into the permissive sphere of credibility. It is not enough
that she claims that she saw what was done to her daughter. It is required that her claim be
properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot

conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold
otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite
her timely appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where
he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have
already been discovered or witnessed by no less than the mother of his victim. For, the normal
behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his
pants up to avoid being caught literally with his pants down. The interval, although relatively
short, provided more than enough opportunity for Primo not only to desist from but even to
conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the
question of the court
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that enshrouds the question of
whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis
penetrating her vagina, however slight. Crysthel made a categorical statement denying
penetration, 27 obviously induced by a question propounded to her who could not have been
aware of the finer distinctions between touching and penetration. Consequently, it is improper
and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accused touched her organ there was sexual entry.
Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused
touched the middle portion of her vagina and entered the labia of her pudendum as the
prosecution failed to establish sufficiently that Primo made efforts to penetrate
Crysthel. 22Corazon did not say, nay, not even hint that Primo's penis was erect or that he
responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his
penis with his right hand, thus showing that he had yet to attain an erection to be able to
penetrate his victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the
child's own assertion that she resisted Primo's advances by putting her legs close

together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what
Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases
where penetration was not fully established, the Court had anchored its conclusion that rape
nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal
finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping
with redness, or the hymenal tags were no longer visible. 26 None was shown in this case.
Although a child's testimony must be received with due consideration on account of her tender
age, the Court endeavors at the same time to harness only what in her story appears to be true,
acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that
even on the basis of the testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.1wphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness' body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact between the
accused and the victim. 27
In cases of rape where there is a positive testimony and a medical certificate, both should in all
respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate, would be productive of unwarranted
or even mischievous results. It is necessary to carefully ascertain whether the penis of the
accused in reality entered the labial threshold of the female organ to accurately conclude that
rape was consummated. Failing in this, the thin line that separates attempted rape from
consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the
offender commences the commission of rape directly by overt acts, and does not perform all the
acts of execution which should produce the crime of rape by reason of some cause or accident
other than his own spontaneous desistance. All the elements of attempted rape and only of
attempted rape are present in the instant case, hence, the accused should be punished only for
it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for
the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees
lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty
(20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or
aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be
taken from the medium period of reclusion temporal, the range of which is fourteen (14) years,
eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum
shall be taken from the penalty next lower in degree, which is prision mayor, the range of which
is from six (6) years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY"
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay

damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an

indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days
ofreclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.1wphi1.nt
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Pnganiban, J., in the result.

Footnotes
1

People v. Ceilito Orita alias "Lito," G.R. No. 88724, 3 April 1990, 184 SCRA 105.

People v. Eriia, 50 Phil. 998 (1927).

See Note 1.

People v. Quinaola, G.R. No. 126148, 5 May 1995.

Decision penned by Judge Benjamin T. Antonio RTC-Br. 170, Malabon, Metro Manila
(Crim. Case No. 16857-MN).
6

An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that
Purpose the Revised Penal Code, as amended, other Special Penal Laws, and for Other
Purposes, effective on 31 December 1993.
7

"Ayoko," apparently is a contraction of "ayaw ko." "Ayoko, ayoko" means "I don't like,
I don't like."
8

Corazon's brother Vicente Plata responded to her call, as well as others living within the
compound namely, Criselda Carlos Manalac, Fernando Bondal, Jose Carlos and Reynoso
Carlos.
9

Accused alleged that the charge of rape was merely concocted by Ma. Corazon
Pamintuan because of his refusal to buy medicine for her, and perform the other tasks
asked of him by her relatives.
10

See the following American cases where the doctrine originated: Kenny v. State, 65
L.R.A. 316; Rodgers v. State, 30 Tex. App. 510; Brauer v. State, 25 Wis. 413, as cited in
People v. Oscar, 48 Phil. 528 (1925).

11

G.R. No. 104947, 30 June 1994, 233 SCRA 573.

12

People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557; People v.
Hangdaan, G.R. No. 90035, 13 September 1991, 201 SCRA 568; People v. De la Pea,
G.R. No. 104947, 30 June 1994, 233 SCRA 573; People v. Clopino, G.R. No. 117322,
21, May 1998, 290 SCRA 432; People v. Quinaola, G.R. No. 126248, 5 May 1999.
13

People v. Navarro, G.R. No. 96251, 11 May 1993, 221 SCRA 684.

14

In People v. Quinaola (G.R. No. 126148, 5 May 1999) the Court held the word
"touching" to be synonymous with the entry by the penis into the labia declaring that ". . .
the crime of rape is deemed consummated even when the man's penis merely entered the
labia or lips of the female organ, or as once said in a case, by the "mere touching of the
external genitalia by the penis capable of sexual act" . . .
15

Mishell, Stenchever Droegemueller, Herbst Comprehensive Gynecology, 3rd Ed.,

1997, pp. 42-44.
16

People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498; People v.
Galimba, G.R. Nos. 121563-64, 20 February 1996, 253 SCRA 722; People v. Sanchez,
G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14; People v. Lazaro, G.R. No.
99263, 12 October 1995, 249 SCRA 234; People v. Rejano, G.R. Nos. 105669-70, 18
October 1994, 237 SCRA 627; People v. Salinas, G.R. No. 107204, 6 May 1994, 232
SCRA 274; People v. Palicte, G.R. No. 101088, 27 January 1994, 229 SCRA 543; People
v. Arce, G.R. Nos. 101833-34, 20 October 1993, 227 SCRA 406; People v. Garcia, G.R.
No. 92269, 30 July 1993, 244 SCRA 776; People v. Tismo, No. L-44773, 4 December
1991, 204 SCRA 535; People v. Mayoral, G.R. Nos. 96094-95, 13 November 1991, 203
SCRA 528, People v. Hangdaan, G.R. No. 90035, 13 September 1991, 201 SCRA 568;
People v. Caballes, G.R. Nos. 93437-45, 12 July 1991, 199 SCRA 152; People v.
Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557.
17

People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432.

18

See Note 4.

19

People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498.

20

TSN, 7 October 1996, p. 20.

21

In Dulla v. CA (G.R. No. 123164, 18 February 2000) the Court considered the
testimony of a child aged three (3) years and ten (10) months old sufficient and credible
even if she answered "yes" or "no" to questions propounded to her. However, the victim
therein, who was much younger than Crysthel in the instant case, demonstrated what she
meant when unable to articulate what was done to her, even made graphic descriptions of
the accused's penis and demonstrated the push and pull movement made by the accused.
Yet conspicuously, the Court in the Dulla case found the accused guilty only of acts of

lasciviousness on the basis of certain inconsistencies in the testimony of the victim on

whether or not petitioner took off her underwear.
22

In People v. Clopino (G.R. No. 117322, 21 May 1998) the Court rejected the argument
of the accused that he should only be convicted of either attempted rape or acts of
lasciviousness. It adopted the reasoning of the Solicitor General and declared that it was
impossible for the penis of accused-appellant not to have touched the labia of the
pudendum in trying to penetrate her. However, such logical conclusion was deduced in
the light of evidence presented that accused-appellant made determined attempts to
penetrate and insert his penis into the victim's vagina and even engaged her in foreplay by
inserting his finger into her genitalia. The same inference cannot be made in the instant
case because of the variance in the factual milieu.
23

Decisions finding the accused guilty of consummated rape even if the attacker's penis
merely touched the female external genitalia were made in the context of the presence of
an erect penis capable of full penetration, failing in which there can be no consummated
rape (People v. De la Pea, see Note 11).
24

See Note 16, p. 21.

25

Ibid.

26

People v. Villamayor, G.R. Nos. 97474-76, 18 July 1991, 199 SCRA 472; People v.
Palicte, G.R. No. 101088, 27 January 1994, 229 SCRA 543; People v. Sanchez, G.R.
Nos. 98402-04, 16 November 1995, 250 SCRA 14; People v. Gabris, G.R. No. 116221,
21 July 1996, 258 SCRA 663; People v. Cabayron, G.R. No. 102018, 21 August 1997,
278 SCRA 78.
27

Q: Will you tell the Court, what do you mean by this No. 1. conclusion appearing in
Exhibit "A" which I quote "no evident sign of extra-genital injury noted on the body of
the subject at the time of examination?"
A: That means I was not able to see injuries outside the genital of the victim, sir.
Q: I presumed (sic) that you conducted genital physical examination on the victim
in this case?
A: Yes sir.
Q: And you also made the result of the genital physical examination shows (sic)
that there is no injury on any part of the body of the patient, correct, Doctor?
A: Yes sir.
Q: There was no medical basis for the saying that might have a contact between
the patient and the accused in this case?

A: Yes sir (TSN, 8 October 1996, pp. 3-4).