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G.R. No. L-48185

August 18, 1941

FELICIANO B. GARDINER, as Acting Provincial

Fiscal of Pampanga, petitioner,
Instance of Pampanga, ET AL., respondents.
Feliciano B. Gardiner in his own behalf.
Jose Alejandrino for respondent Eugenio Villegas.
Francisco M. Ramos for respondent Maximo Manlapid.
This is an original petition for writ of mandamus to
compel the respondent judge to admit the testimony of
Catalino Fernandez, one of the accused in criminal case
No. 6598, to prove the alleged conspiracy between him
and his five coaccused, respondents herein.
It appears that on October 30, 1940, the herein
petitioner, as Acting Provincial Fiscal of Pampanga, filed
an information against the said Catalino Fernandez and
the herein respondents Pedro Yalung, Eugenio Villegas,
Maximo Manlapid, Magno Icban, and Rufino Maun,
charging them with having conspired together to kill, and
that they did kill, one Gaudencio Vivar, with evident
Upon arraignment Catalino Fernandez pleaded guilty
and his five coaccused, not guilty. At the trial of the latter,
the former was called by the fiscal as his first witness, to
testify to the alleged conspiracy. Upon objection of
counsel for the defense, the respondent judge did no
permit the witness Catalino Fernandez to testify against
his coaccused, on the ground that he being a
conspirator, his act or declaration is not admissible
against his coconspirators until the conspiracy is shown
by evidence other than such act or declaration, under
section 12, rule 123 of the Rules of Court. A written
motion for reconsideration, supported with lenthy
argument, was filed by the fiscal to no avail. Hence the
present petition for mandamus.
The only question raised here is the interpretation of
section 12 of rule 123, which reads as follows:
SEC. 12. Admission by conspirator. The act
or declaration of a conspirator relating to the
conspiracy and during its existence, may be
given in evidence against the coconspirator after
the conspiracy is shown by evidence other than
such act or declaration.
That is not a new rule of evidence. It is a re-enactment of
paragraph 6, section 298 of the old Code of Civil
Procedure, which provided that after proof of a
conspiracy, the act or declaration of a conspirator
relating to the conspiracy may be given in evidence. This
rule has a well-settled meaning in jurisprudence, but
apparently the respondents completely missed it. It is
one of the exceptions to the "res inter alios" rule. It refers

to an extrajudicial declaration of a conspirator not to

his testimony by way of direct evidence. For illustration,
let us suppose that after the formation but before the
consummation of the alleged conspiracy between
Catalino Fernandez and his five coaccused, the former
borrowed a bolo from a friend, stating that he and his
coaccused were going to kill Gaudencio Vivar. Such act
and declaration of Fernandez's friend to the effect that
Fernandez borrowed his bolo and told him that he
(Fernandez) and his coaccused were going to kill
Gaudencion Viviar would be admissible against
Fernandez, but not against his coaccused unless the
conspiracy between them be proven first. It is admissible
against Fernandez because the act, declaration, or
omission of a party as to a relevant fact may be given in
evidence against him (section 7, rule 123). But, without
proof of conspiracy, it is not admissible against
Fernandez's coaccused because the act and declaration
of Fernandez are res inter alios as to his coaccused and,
therefore, cannot affect them. But if there is conspiracy,
each conspirator is privy to the acts of the others; the act
of one conspirator is the act of all the coconspirators.
To further explain the rule in the language of the
jurisprudence on the subject, we add:
... The evidence adduced in court by the
coconspirators as witnesses are not declarations
of conspirators, but directly testimony to the
facts to which they testify. Aside from the
discredit which attaches to them as
accomplices, their evidence is entirely
competent to establish the facts to which they
testify. The rule for which counsel contends is
applicable only when it sought to introduce
extrajudicial declarations and statements of
coconspirators (People v. Steelik, 187 Cal. 361,
203 P. 78, 84.)
There is no rule requiring the prosecution to
establish a conspiracy in order to permit a
witness to testify what one or all of several
accused persons did; and evidence adduced by
coconspirators as witnesses, which is direct
evidence of the facts to which they testify, is not
within the rule requiring a conspiracy to be
shown as a prerequisite to its admissibility. ...
(22 C. J. S. 1293; see also 2 Whartoon's
Criminal Evidence, 1189; cox and
others v. State, 8 Tex Cr. App. 254, 303, 34 Am.
Rep. 746; White v. State, 60 Tex. Cr. R. 559,
132, S. W. [2d] 518; Bannister v. State, 112 Tex.
Cr. R. 158, 15 S. W. [2d] 629; Bland v. State, 89
S. W. [2d] 996, 998.)
Let the writ of mandate be issued as prayed for by the
petitioner, with costs. So ordered.
Praeter Intentionem
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
GARCIA y RIVERA and JOHN DOE, accused,


GARCIA y RIVERA, accused-


Accused are hereby ordered to pay the

offended party the sum of P35,000.00 for
funeral expenses of deceased Andre Mar
Masangkay and death indemnity
of P50,000.00.

A person who commits a felony is liable for the
direct, natural and logical consequences of his wrongful
act even where the resulting crime is more serious than
that intended. Hence, an accused who originally
intended to conceal and to bury what he thought was the
lifeless body of the victim can be held liable as a
principal, not simply as an accessory, where it is proven
that the said victim was actually alive but subsequently
died as a direct result of such concealment and
burial. Nonetheless, in the present case, Appellant
Garcia can not be held liable as a principal because the
prosecution failed to allege such death through drowning
in the Information. Neither may said appellant be held
liable as an accessory due to his relationship with the
principal killer, Appellant Ortega, who is his brother-inlaw.
Statement of the Case
This case springs from the joint appeal interposed
by Appellants Benjamin Ortega, Jr. and Manuel Garcia
from the Decision,[1] dated February 9, 1994 written by
Judge Adriano R. Osorio,[2] finding them guilty of murder.
Appellants were charged by State Prosecutor
Bernardo S. Razon in an Information [3] dated October 19,
1992, as follows:
That on or about October 17, 1992 in
Valenzuela, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together
and mutually helping one another, without any
justifiable cause, with treachery and evident
premeditation and with abuse of superior
strenght (sic) and with deliberate intent to kill,
did then and there willfully, unlawfully and
feloniously attack, assault and stab repeatedly
with a pointed weapon on the different parts of
the body one ANDRE MAR MASANGKAY y
ABLOLA, thereby inflicting upon the latter
serious physical injuries which directly caused
his death.
During arraignment, Appellants Ortega and Garcia,
assisted by counsel de oficio,[4] pleaded not guilty to the
charge.[5] Accused John Doe was then at large.[6] After
trial in due course, the court a quo promulgated the
questioned Decision. The dispositive portion reads:[7]
WHEREFORE, finding accused Benjamin
Ortega, Jr. y Conje and Manuel Garcia y Rivera
[g]uilty beyond reasonable doubt of the crime
charged, the Court hereby sentenced (sic)
them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.

The Notice of Appeal, dated March 9, 1994, was

thus filed by Atty. Evaristo P. Velicaria [8] who took over
from the Public Attorneys Office as counsel for the
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the
prosecution witnesses as follows:[9]
Diosdado Quitlong substantially testified that on
October 15, 1992 at about 5:30 in the
afternoon, he, the victim Andre Mar
Masangkay, Ariel Caranto, Romeo Ortega,
Roberto San Andres were having a drinking
spree in the compound near the house of
Benjamin Ortega, Jr. at Daangbakal,
Dalandanan, Valenzuela, Metro Manila. That
while they were drinking, accused Benjamin
Ortega, Jr. and Manuel Garcia who were
[already] drunk arrived and joined them. That
victim Andre Mar Masangkay answered the call
of nature and went to the back portion of the
house. That accused Benjamin Ortega, Jr.
followed him and later they [referring to the
participants in the drinking session] heard the
victim Andre Mar shouted, Dont, help me!
(Huwag, tulungan ninyo ako!) That he and Ariel
Caranto ran towards the back portion of the
house and [they] saw accused Benjamin
Ortega, Jr., on top of Andre Mar Masangkay
who was lying down in a canal with his face up
and stabbing the latter with a long bladed
weapon. That Ariel Caranto ran and fetched
Benjamin Ortega, Sr., the father of accused
Benjamin, Jr. That he [Quitlong] went to Romeo
Ortega in the place where they were having the
drinking session [for the latter] to pacify his
brother Benjamin, Jr. That Romeo Ortega went
to the place of the stabbing and together with
Benjamin Ortega, Jr. and Manuel Garcia lifted
Andre Mar Masangkay from the canal and
brought Andre Mar to the well and dropped the
latter inside the well. That Romeo Ortega,
Benjamin Ortega, Jr. and Manuel Garcia then
dropped stones measuring 11 to 12 inches
high, 2 feet in length and 11 to 12 inches in
weight to the body of Andre Mar Masangkay
inside the well. That Romeo Ortega warned
him [Quitlong] not to tell anybody of what he
saw. That he answered in the affirmative and
he was allowed to go home. That his house is
about 200 meters from Romeo Ortegas
house. That upon reaching home, his
conscience bothered him and he told his
mother what he witnessed. That he went to the
residence of Col. Leonardo Orig and reported

the matter. That Col. Orig accompanied him to

the Valenzuela Police Station and some police
officers went with them to the crime
scene. That accused Benjamin Ortega, Jr. and
Manuel Garcia were apprehended and were
brought to the police station.
On cross-examination, he said that he did not
talk to the lawyer before he was presented as
witness in this case. That he narrated the
incident to his mother on the night he
witnessed the killing on October 15, 1992. That
on October 15, 1992 at 5:30 in the afternoon
when he arrived, victim Andre Mar Masangkay,
Romeo Ortega, Serafin and one Boyet were
already having [a] drinking spree and he joined
them. That accused Benjamin Ortega, Jr. and
Manuel Garcia were not yet in the place. That
the stabbing happened between 12:00 midnight
and 12:30 a.m. That they drank gin with finger
foods such as pork and shell fish. That he met
the victim Andre Mar Masangkay only on that
occasion. That accused Benjamin Ortega, Jr.
and Manuel Garcia joined them at about 11:00
p.m. That there was no altercation between
Benjamin Ortega, Jr. and Manuel Garcia in one
hand and Andre Mar Masangkay, during the
drinking session. That at about 12:30 a.m.
Andre Mar Masangkay answered the call of
nature and went to the back portion of the
house. That he cannot see Andre Mar
Masangkay from the place they were having
the drinking session. That he did not see what
happened to Andre Mar Masangkay. That he
only heard Masangkay asking for help. That
accused Manuel Garcia was still in the drinking
session when he heard Masangkay was asking
for help. That Benjamin Ortega, Jr. and Manuel
Garcia are his friends and neighbors. That
when he heard Andre Mar Masangkay was
asking for help, he and Ariel Caranto ran to the
back portion of the house and saw Benjamin
Ortega, Jr. on top of Andre Mar Masangkay and
stabbing the latter. That Andre Mar Masangkay
was lying down with his back in the canal and
Benjamin Ortega, Jr. on top stabbing the
former. That he did not see any injuries on
Benjamin Ortega, Jr. That he called Romeo
Ortega to pacify his brother Benjamin, Jr. That
he did not do anything to separate Benjamin
Ortega, Jr. and Masangkay. That he knows that
Andre Mar Masangkay was courting Raquel
Ortega. That Raquel Ortega asked permission
from Andre Mar Masangkay when she left
between 8:00 and 9:00 p.m.That there was no
trouble that occurred during the drinking
PNP Superintendent Leonardo Orig
substantially testified that Diosdado Quitlong is
his neighbor for about 9 years. That on October
16, 1992 at 5:00 in the morning, he was
summoned by Diosdado Quitlong and reported
to him the stabbing incident that occurred at
Daangbakal near the subdivision he is

living. That he relayed the information to the

Valenzuela Police Station and a police team
under police officer Param accompanied them
to the place. That he asked the police officers
to verify if there is a body of person inside the
well. That the well was covered with stones and
he asked the police officers to seek the help of
theneighbors (sic) to remove the stones inside
the well. That after the stones were removed,
the body of the victim was found inside the
well. That the lifeless body was pulled out from
the well. That the body has several stab
wounds. That he came to know the victim as
Andre Mar Masangkay. That two men were
arrested by the police officers.
On cross-examination, he said that he saw the
body when taken out of the well with several
stab wounds. That Diosdado Quitlong told him
that he was drinking with the victim and the
assailants at the time of the incident. That
Benjamin Ortega, Jr. stabbed the victim while
the latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat
substantially testified that he conducted [an]
autopsy on the cadaver of Andre Mar
Masangkay on October 16, 1992 at the
Valenzuela Memorial Homes located at
Macarthur Highway. That he prepared the
autopsy report and the sketch of human head
and body indicating the location of the stab
wounds. That the cause of death is multiple
stab wounds, contributory, [a]sphyxia by
submersion in water. That there were 13 stab
wounds, 8 of which were on the frontal part of
the body, 2 at the back and there were
contused abrasions around the neck and on
the left arm. There was stab wound at the left
side of the neck. That the contused abrasion
could be produced by cord or wire or rope. That
there is (an) incised wound on the left
forearm.That the stab wounds which were
backward downward of the body involved the
lungs. That the victim was in front of the
assailant. That the stab wound on the upper left
shoulder was caused when the assailant was in
front of the victim. That the assailant was in
front of the victim when the stab wound near
the upper left armpit was inflicted as well as the
stab wound on the left chest wall. That the stab
wound on the back left side of the body and the
stab wound on the back right portion of the
body may be produced when the assailant was
at the back of the victim. That the assailant was
in front of the victim when the stab wound[s] on
the left elbow and left arm were inflicted. That
the large airway is filled with muddy particles
indicating that the victim was alive when the
victim inhaled the muddy particles. The heart is
filled with multiple hemorrhage, loss of blood or
decreased of blood. The lungs is filled with
water or muddy particles. The brain is pale due
to loss of blood.The stomach is one half filled

with muddy particles which could [have been]

taken in when submerged in water.
On cross-examination, he said that he found 13
stab wounds on the body of the victim. That he
cannot tell if the assailant or the victim were
standing. That it is possible that the stab
wounds was (sic) inflicted when both [referring
to participants] were standing or the victim was
lying down and the assailant was on top. That
he cannot tell the number of the assailants.

Masangkay who ran towards the direction of the

well. Thereafter, Ortega went home and treated his
injured left armpit and lips. Then, he slept.
When he woke up at six o clock the following
morning, he saw police officers in front of his
house. Taking him with them, the lawmen proceeded to
the well. From the railroad tracks where he was asked to
sit, he saw the police officers lift the body of a dead
person from the well. He came to know the identity of the
dead person only after the body was taken to the police

Evidence for the Appellants

The Trial Courts Discussion
Appellant Manuel Garcia testified that in the early
morning of October 15, 1992, he and his wife, Maritess
Garcia, brought their feverish daughter, Marjorie, to the
Polo Emergency Hospital. He left the hospital at seven o
clock in the morning, went home, changed his clothes
and went to work.[10] After office hours, he and Benjamin
Ortega, Jr. passed by the canteen at their place of
work. After drinking beer, they left at eight o clock in the
evening and headed home. En route, they chanced on
Diosdado Quitlong alias Mac-mac and Andre Mar
Masangkay, who invited them to join their own drinking
spree. Thereupon, Appellant Garcias wife came and
asked him to go home because their daughter was still
sick. To alleviate his daughters illness, he fetched his
mother-in-law who performed a ritual called tawas. After
the ritual, he remained at home and attended to his sick
daughter. He then fell asleep but was awakened by
police officers at six o clock in the morning of the
following day.
Maritess Garcia substantially corroborated the
testimony of her husband. She however added two other
participants in the drinking session aside from Diosdado
Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, a Mang Serafin and Boyet Santos.[11]
Benjamin Ortega, Jr. likewise substantially
corroborated the testimony of Appellant Manuel Garcia.
According to him, between eleven and twelve o clock
in the evening, Masangkay left the drinking
session. Thirty (30) minutes after Masangkay left, he
also left the drinking place to urinate. [13] He went behind
the house where he saw Masangkay peeping through
the room of his sister Raquel. He ignored Masangkay
and continued urinating.[14] After he was through,
Masangkay approached him and asked where his sister
was. He answered that he did not know. Without
warning, Masangkay allegedly boxed him in the mouth,
an attack that induced bleeding and caused him to fall
on his back. When he was about to stand up,
Masangkay drew a knife and stabbed him, hitting him on
the left arm, thereby immobilizing him. Masangkay then
gripped his neck with his left arm and threatened to kill
him. Unable to move, Ortega shouted for help. Quitlong
came and, to avoid being stabbed, grabbed Masangkays
right hand which was holding the knife. Quitlong was
able to wrest the knife from Masangkay and, with it, he
stabbed Masangkay ten (10) times successively, in the
left chest and in the middle of the stomach. When the
stabbing started, Ortega moved to the left side of
Masangkay to avoid being hit.[15] Quitlong chased

The trial court explained its basis for appellants

conviction as follows:[17]
The Court is convinced that the concerted acts
of accused Benjamin Ortega, Jr., Manuel
Garcia, Jr. and one Romeo Ortega in lifting,
carrying and dumping the victim Andre Mar
Masangkay who was still alive and breathing
inside the deep well filled with water, head first
and threw big stones/rocks inside the well to
cover the victim is a clear indication of the
community of design to finish/kill victim Andre
Mar Masangkay. Wounded and unarmed victim
Andre Mar Masangkay was in no position to
flee and/or defend himself against the three
malefactors. Conspiracy and the taking
advantage of superior strength were in
attendance. The crime committed by the
accused is Murder.
Concert of action at the moment of
consummating the crime and the form and
manner in which assistance is rendered to the
person inflicting the fatal wound may determine
complicity where it would not otherwise be
evidence (People vs. Yu, 80 SCRA 382
Every person criminally liable for a felony is
also civilly liable. Accused (m)ust reimburse the
heirs of victim Andre Mar Masangkay the
amount of P35,000.00 for the funeral expenses
of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court
with the following: [18]
I. The trial court erred in holding that there
is conspiracy on the basis of the
prosecutions evidence that at the
time both accused and one Romeo
Ortega lifted the body of Andrew
Masangkay from where he
succumbed due to stab wounds and
brought and drop said body of
Andrew Masangkay to the well to
commit murder;

II. The trial court erred in finding and

holding that Andrew Masangkay
was still alive at the time his body
was dropped in the well;
III. The trial court erred in convicting
Manuel Garcia and in not acquitting
the latter of the crime charged; and
IV. The trial court erred in not finding that if
at all Benjamin Ortega Jr. is guilty
only of homicide alone.
On the basis of the records and the arguments raised by
the appellants and the People, we believe that the
question to be resolved could be simplified thus: What
are the criminal liabilities, if any, of Appellants Ortega
and Garcia?
The Courts Ruling
We find the appeal partly meritorious. Appellant
Ortega is guilty only of homicide. Appellant Garcia
deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense
presented conflicting narrations. The prosecution
witnesses described the commission of the crime and
positively identified appellants as the perpetrators. The
witnesses for the defense, on the other hand, attempted
to prove denial and alibi. As to which of the two
contending versions speaks the truth primarily rests on a
critical evaluation of the credibility of the witnesses and
their stories. In this regard, the trial court held:[19]
The Court has listened intently to the narration
of the accused and their witnesses and the
prosecution witnesses and has keenly
observed their behavior and demeanor on the
witness stand and is convinced that the story of
the prosecution is the more believable
version. Prosecution eyewitness Diosdado
Quitlong appeared and sounded credible and
his credibility is reinforced by the fact that he
has no reason to testify falsely against the
accused. It was Diosdado Quitlong who
reported the stabbing incident to the police
authorities. If Quitlong stabbed and killed the
victim Masangkay, he will keep away from the
police authorities and will go in hiding. x x x

courts assessment of the credibility of the witnesses and

their testimonies[21]insofar as Appellant Ortega is
concerned. The narration of Eyewitness Diosdado
Quitlong appears to be spontaneous and consistent. It is
straightforward, detailed, vivid and logical. Thus, it
clearly deserves full credence.
On the other hand, in asserting alibi and denial, the
defense bordered on the unbelievable. Appellant Ortega
claimed that after he was able to free himself from
Masangkays grip, he went home, treated his injuries and
slept.[22] This is not the ordinary reaction of a person
assaulted. If Ortegas version of the assault was true, he
should have immediately reported the matter to the
police authorities, if only out of gratitude to Quitlong who
came to his rescue. Likewise, it is difficult to believe that
a man would just sleep after someone was stabbed in
his own backyard. Further, we deem it incredible that
Diosdado Quitlong would stab Masangkay ten (10) times
successively, completely ignoring Benjamin Ortega, Jr.
who was grappling with Masangkay. Also inconsistent
with human experience is his narration that Masangkay
persisted in choking him instead of defending himself
from the alleged successive stabbing of Quitlong.
The natural tendency of a person under attack is to
defend himself and not to persist in choking a
defenseless third person.
Murder or Homicide?
Although treachery, evident premeditation and
abuse of superior strength were alleged in the
information, the trial court found the presence only of
abuse of superior strength.
We disagree with the trial courts finding. Abuse of
superior strength requires deliberate intent on the part of
the accused to take advantage of such superiority. It
must be shown that the accused purposely used
excessive force that was manifestly out of proportion to
the means available to the victims defense. [24] In this
light, it is necessary to evaluate not only the physical
condition and weapon of the protagonists but also the
various incidents of the event.[25]
In his testimony, Witness Dominador Quitlong
mentioned nothing about Appellant Ortegas availment of
force excessively out of proportion to the means of
himself. Quitlong described the assault made by
Appellant Ortega as follows:[26]

Because the trial court had the opportunity to

observe the witnesses demeanor and deportment on the
stand as they rendered their testimonies, its evaluation
of the credibility of witnesses is entitled to the highest
respect. Therefore, unless the trial judge plainly
overlooked certain facts of substance and value which, if
considered, might affect the result of the case, his
assessment of credibility must be respected.[20]
In the instant case, we have meticulously scoured
the records and found no reason to reverse the trial

Q Will you please tell me the place and date

wherein you have a drinking spree with
Andrew Masangkay and where you
witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about
5:30 in the afternoon we were drinking in
the house of Mr. Benjamin Ortega, Sr.,
because the house of Benjamin Ortega
Sr. and the house of his son Benjamin
Ortega, Jr. are near each other.

xxx xxx xxx

Q Mr. Witness, who were the companions of
said persons, Benjamin Ortega, Jr.,
Manuel Garcia, you (sic) in drinking in
said place?

done telling us the particular position of

the late Andrew Masangkay and how
Benjamin Ortega, Jr proceeded with the
stabbing against the late victim, Andrew

A The other companions in the drinking

session were Ariel Caranto y Ducay,
Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay,
where was he at that time?
A Also the victim, Andrew Masangkay, he was
also there.
Q You said that the two accused, Manuel
Garcia and Benjamin Ortega, Jr. arrived
drunk and joined the group?
A Yes, sir.




Andrew Masangkay was lying down on a canal

with his face up, then Benjamin Ortega,
Jr. was nakakabayo and with his right
hand with closed fist holding the weapon,
he was thrusting this weapon on the body
of the victim, he was making downward
and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr.
stabbed Andrew Masangkay?

Q What happened next?

A I cannot count the number of times.
A While we were there together and we were
drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel
Garcia, Ariel Caranto, Romeo Ortega,
Roberto San Andres, myself and Andrew
Masangkay. Andrew Masangkay answer
to a call of nature and went to the back
portion of the house, and Benjamin
Ortega, Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the
shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew
Masangkay to answer a call of nature and
after you heard huwag, tulungan nyo ako
coming from the mouth of the late Andrew
Masangkay, what happened next?
A Ariel Caranto and I ran towards the back
portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on
top of Andrew Masangkay and he was
stabbing Andrew Masangkay.
Q Will you please demonstrate to the
Honorable Court how the stabbing was

It should be noted that Victim Masangkay was a sixfooter, whereas Appellant Ortega, Jr. was only five feet
and five inches tall.[27] There was no testimony as to how
the attack was initiated. The accused and the victim
were already grappling when Quitlong arrived. Nothing in
the foregoing testimony and circumstances can be
interpreted as abuse of superior strength.Hence, Ortega
is liable only for homicide, not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by
the trial court is based on mere assumption and
conjecture x x x.[28] Allegedly, the medico-legal finding
that the large airway was filled with muddy particles
indicating that the victim was alive when the victim
inhaled the muddy particles did not necessarily mean
that such muddy particles entered the body of the victim
while he was still alive. The Sinumpaang Salaysay of
Quitlong stated, Nilubayan lang nang saksak nang
mapatay na si Andrew ni Benjamin Ortega, Jr. Thus, the
prosecution evidence shows Masangkay was already
dead when he was lifted and dumped into the
well. Hence, Garcia could be held liable only as an
We do not agree with the above contention. Article
4, par. 1, of the Revised Penal Code states that criminal
liability shall be incurred by any person committing a
felony (delito) although the wrongful act done be
different from that which he intended. The essential
requisites for the application of this provision are that (a)
the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver
wrong was primarily caused by the actors wrongful
acts. In assisting Appellant Ortega, Jr. carry the body of
Masangkay to the well, Appellant Garcia was committing
a felony. The offense was that of concealing the body of

the crime to prevent its discovery, i.e. that of being an

accessory in the crime of homicide. [30]Although Appellant
Garcia may have been unaware that the victim was still
alive when he assisted Ortega in throwing the body into
the well, he is still liable for the direct and natural
consequence of his felonious act, even if the resulting
offense is worse than that intended.

Q Next point is the lungs?

True, Appellant Garcia merely assisted in

concealing the body of the victim. But the autopsy
conducted by the NBI medico-legal officer showed that
the victim at that time was still alive, and that he died
subsequently of drowning.[31] That drowning was the
immediate cause of death was medically demonstrated
by the muddy particles found in the victims airway, lungs
and stomach.[32] This is evident from the expert testimony
given by the medico-legal officer, quoted below:[33]

A This is due to asphyxia or the loss of blood.

Q Will you please explain this in simple
language the last portion of Exhibit N,
beginning with tracheo-bronchial tree, that
is sentence immediately after paragraph
10, 2.5 cms. Will you please explain this?
A The trancheo-bronchial tree is filled with
muddy particles.
Q I ask you a question on this. Could the victim
have possibly get this particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy
particles could be inhaled.
Q So, in short, you are telling or saying to us
that if there is no inhaling or the taking or
receiving of muddy particles at that time,
the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple
petechial hemorrhages at the anterior
Q And this may [be] due to stab wounds or
A These are the effects or due to asphyxia or
decreased amount of blood going to the
Q This asphyxia are you referring to is the
A Yes, sir.

A The lungs is also filled with multiple petechial

Q What could have caused this injury of the

Q Are you saying that the lungs have been

filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that
due to stab wounds or asphyxia, the lungs
have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral
organs, pale. What is this?
A The paleness of the brain and other visceral
organs is due to loss of blood.
Q And, of course, loss of blood could be
attributed to the stab wound which is
number 13?
A Yes, sir.
Q And the last one, under the particular point
A It indicates at the right side. There are
around 1,400 cc of blood that accumulate
at the thoraxic cavity and this was
admixed with granular materials?
Q And what cause the admixing with granular
materials on said particular portion of the
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as
affected by asphyxia? Am I correct?
A Its due to stab wounds those muddy
particles which set-in thru the stab
Q So, because of the opening of the stab
wounds, the muddy particles now came
in, in that particular portion of the body
and caused admixing of granular
A Yes, sir.

Q Continuing with your report, particularly, the

last two portions, will you please explain
the same?
A The hemoperitoneum there are 900 cc of
blood that accumulated inside the
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy
particles. Please explain the same?
A The victim could have taken these when he
was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)
A Filipino authority on forensic medicine opines that
any of the following medical findings may show that
drowning is the cause of death:[34]
1. The presence of materials or foreign
bodies in the hands of the
victim. The clenching of the hands is
a manifestation of cadaveric spasm
in the effort of the victim to save
himself from drowning.
2. Increase in volume (emphysema
aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the
stomach contents corresponding to
the medium where the body was
4. Presence of froth, foam or foreign
bodies in the air passage found in
the medium where the victim was
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of
Victim Masangkay. It was proven that his airpassage, or
specifically his tracheo-bronchial tree, was filled with
muddy particles which were residues at the bottom of
the well. Even his stomach was half-filled with such
muddy particles. The unrebutted testimony of the
medico-legal officer that all these muddy particles were
ingested when the victim was still alive proved that the
victim died of drowning inside the well.

The drowning was the direct, natural and logical

consequence of the felony that Appellant Garcia had
exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised
Penal Code. Under this paragraph, a person may be
convicted of homicide although he had no original intent
to kill.[35]
In spite of the evidence showing that Appellant
Garcia could be held liable as principal in the crime of
homicide, there are, however, two legal obstacles
barring his conviction, even as an accessory as prayed
for by appellants counsel himself.
First. The Information accused Appellant Garcia
(and Appellant Ortega) of attack[ing], assault[ing], and
stab[bing] repeatedly with a pointed weapon on the
different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA The prosecutions evidence
itself shows that Garcia had nothing to do with the
stabbing which was solely perpetrated by Appellant
Ortega. His responsibility relates only to the attempted
concealment of the crime and the resulting drowning of
Victim Masangkay. The hornbook doctrine in our
jurisdiction is that an accused cannot be convicted of an
offense, unless it is clearly charged in the complaint or
information. Constitutionally, he has a right to be
informed of the nature and cause of the accusation
against him. To convict him of an offense other than that
charged in the complaint or information would be a
violation of this constitutional right.[36] Section 14, par. 2,
of the 1987 Constitution explicitly guarantees the
(2) In all criminal prosecutions, the accused
shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the
nature and cause of the accusation against
him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to
have compulsory process to secure the
attendance of witnesses and the production of
evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding
the absence of the accused provided that he
has been duly notified and his failure to appear
is unjustifiable. (Underscoring supplied)
In People vs. Pailano,[37] this Court ruled that there
can be no conviction for rape on a woman deprived of
reason or otherwise unconscious where the information
charged the accused of sexual assault by using force or
intimidation, thus:
The criminal complaint in this case alleged the
commission of the crime through the first
method although the prosecution sought to
establish at the trial that the complainant was a
mental retardate.Its purpose in doing so is not
clear. But whatever it was, it has not
If the prosecution was seeking to convict the
accused-appellant on the ground that he

violated Anita while she was deprived of reason

or unconscious, such conviction could not have
been possible under the criminal complaint as
worded. This described the offense as having
been committed by Antonio Pailano, being then
provided with a scythe, by means of violence
and intimidation, (who) did, then and there,
wilfully, unlawfully and feloniously have carnal
knowledge of the complainant, Anita Ibaez, 15
years of age, against her will. No mention was
made of the second circumstance.
Conviction of the accused-appellant on the
finding that he had raped Anita while she was
unconscious or otherwise deprived of reason -and not through force and intimidation, which
was the method alleged -- would have violated
his right to be informed of the nature and cause
of the accusation against him.[Article IV, Sec.
19, Constitution of 1973; now Article III, Sec.
14(2)] This right is safeguarded by the
Constitution to every accused so he can
prepare an adequate defense against the
charge against him. Convicting him of a ground
not alleged while he is concentrating his
defense against the ground alleged would
plainly be unfair and underhanded. This right
was, of course, available to the herein
In People vs. Ramirez, [fn: 69 SCRA 144] we
held that a person charged with rape could not
be found guilty of qualified seduction, which
had not been alleged in the criminal complaint
against him.In the case of People vs. Montes,
[fn: 122 SCRA 409] the Court did not permit the
conviction for homicide of a person held
responsible for the suicide of the woman he
was supposed to have raped, as the crime he
was accused of -- and acquitted -- was not
homicide but rape. More to the point is Tubb v.
People of the Philippines, [fn: 101 Phil. 114]
where the accused was charged with the
misappropriation of funds held by him in trust
with the obligation to return the same under
Article 315, paragraph 1(b) of the Revised
Penal Code, but was convicted of swindling by
means of false pretenses, under paragraph
2(b) of the said Article, which was not alleged in
the information. The Court said such conviction
would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be
convicted of homicide through drowning in an
information that charges murder by means of stabbing.
Second. Although the prosecution was able to
prove that Appellant Garcia assisted in concealing x x x
the body of the crime, x x x in order to prevent its
discovery, he can neither be convicted as an accessory
after the fact defined under Article 19, par. 2, of the
Revised Penal Code. The records show that Appellant
Garcia is a brother-in-law of Appellant Ortega, [38] the
latters sister, Maritess, being his wife.[39] Such
relationship exempts Appellant Garcia from criminal

liability as provided by Article 20 of the Revised Penal

ART. 20. Accessories who are exempt from
criminal liability. -- The penalties prescribed for
accessories shall not be imposed upon those
who are such with respect to their spouses,
ascendants, descendants, legitimate, natural,
and adopted brothers and sisters, or relatives
by affinity within the same degrees with the
single exception of accessories falling within
the provisions of paragraph 1 of the next
preceding article.
On the other hand, the next preceding article
ART. 19. Accessories. Accessories are those
who, having knowledge of the commission of
the crime, and without having participated
therein, either as principals or accomplices,
take part subsequent to its commission in any
of the following manners:
1. By profiting themselves or assisting
the offender to profit by the effects of
the crime.
2. By concealing or destroying
the body of the crime, or the
effects or instruments thereof,
in order to prevent its
3. By harboring, concealing, or
assisting in the escape of the
principal of the crime, provided
the accessory acts with abuse
of his public functions or
whenever the author of the
crime is guilty of treason,
parricide, murder, or an
attempt to take the life of the
Chief Executive, or is known to
be habitually guilty of some
other crime.
Appellant Garcia, being a covered relative by affinity
of the principal accused, Benjamin Ortega, Jr., is legally
entitled to the aforequoted exempting provision of the
Revised Penal Code.This Court is thus mandated by law
to acquit him.
Penalty and Damages
The award of actual damages should be reduced
to P31,790.00 from P35,000.00. The former amount was
proven both by documentary evidence and by the
testimony of Melba Lozano, a sister of the victim. [40] Of
the expenses alleged to have been incurred, the Court
can give credence only to those that are supported by
receipts and appear to have been genuinely incurred in
connection with the death of the victim.[41] However, in
line with current jurisprudence,[42] Appellant Ortega shall
also indemnify the heirs of the deceased in the sum

ofP50,000.00. Indemnity requires no proof other than the

fact of death and appellants responsibility therefor.[43]
is reclusion
temporal under Article 249 of the Revised Penal
Code, which is imposable in its medium period, absent
any aggravating or mitigating circumstance, as in the
case of Appellant Ortega. Because he is entitled to the
benefits of the Indeterminate Sentence Law, the
minimum term shall be one degree lower, that is, prision
WHEREFORE, premises considered, the joint
is PARTLY GRANTED. Appellant
Ortega, Jr. is found GUILTY of homicide and sentenced
to ten (10) years of prision mayor medium, as minimum,
to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal medium, as maximum. Appellant
Ortega, Jr. is also ORDERED to pay the heirs of the
victim P50,000.00 as indemnity and P31,790.00 as
damages. Appellant
confinement is ORDERED unless he is detained for
some other valid cause.
G.R. No. 107383 December 7, 1994
FELIX NIZURTADO, petitioner,
PHILIPPINES, respondents.
Melquiades P. De Leon for petitioner.
Eugene C. Paras collaborating counsel for the petitioner.

An information, accusing Felix Nizurtado of having
committed the complex crime of malversation of public
funds through falsification of public document, reads:
That on or about August 25, 1983, and
for sometime prior or subsequent
thereto, in the City of Caloocan,
Philippines and within the jurisdiction of
this Honorable Court, the abovenamed
accused, a public officer, being then the
Barangay Captain of Panghulo,
Malabon, Metro Manila, did then and
there, willfully, unlawfully and feloniously
falsify and attest Resolution No. 17
Series of 1983 by making it appear that
on August 25, 1983 the Barangay
council of Panghulo met and identified
T-shirt manufacturing as its livelihood
project, when in truth and in fact, as the
accused fully well knew, no such
meeting was held, where T-shirt
manufacturing was identified and

approved by the Barangay Council as its

livelihood project, and thereafter,
accused submitted the falsified
resolution to the MHS-MMC-KKK
Secretariat which endorsed the same to
the Land Bank of the Philippines, which
on the basis of said endorsement and
the falsified resolution, encashed LBP
check No. 184792 in the amount of TEN
THOUSAND PESOS (P10,000.00),
which check was earlier received by him
as Barangay Captain of Panghulo in
trust for the Barangay for its livelihood
project and for which fund accused
became accountable, and upon receipt
thereof herein accused, with deliberate
intent and grave abuse of confidence
did then and there willfully, unlawfully
and feloniously misappropriate,
misapply and convert to his own
personal use and benefit the amount of
out of the funds for which he was
accountable, to the damage and
prejudice of the government in the said
When arraigned by the Sandiganbayan, Nizurtado
pleaded "not guilty" to the charge. During the pre-trial,
held on 17 July 1989, the prosecution and the defense
stipulated thusly:
1. That sometime in 1983 and 1984,
accused Felix Nizurtado was the
Barangay Captain of Barangay
Panghulo of Malabon, Metro Manila and
discharged his functions as such;
2. That sometime in 1983, the Ministry
of Human Settlements, the Metro Manila
Commission and Kilusang Kabuhayan
at Kaunlaran (KKK) undertook a
Livelihood Program for Barangays in
Metro Manila consisting of loans in the
amount of P10, 000.00 per barangay.
3. That as Barangay Captain of
Barangay Panghulo, accused received a
check in the amount of P10,000.00 for
said barangay's livelihood program;
4. That the check, to be encashed, had
to be supported by a project proposal to
be approved by the KKK;
5. That the accused encashed the check
received by him in the amount of
P10,000.00 with the Land Bank of the
Philippines; and
6. That the accused distributed the
amount of P10,000.00 in the form of

loans of P1,000.00 each to members of

the barangay council. 2
After evaluating the evidence adduced, the
Sandiganbayan came out with its factual findings and
conclusions, hereunder detailed:
It appears from the evidence,
testimonial and documentary, as well as
from the stipulations of the parties that
accused Felix V. Nizurtado was the
Barangay Captain of Barangay
Panghulo, Malabon, Metro Manila from
1983 to 1988.
In April or May 1983, Nizurtado and
Manuel P. Romero, Barangay Treasurer
of Panghulo, attended a seminar at the
University of Life, Pasig, Metro Manila.
The seminar was about the Barangay
Livelihood Program of the Ministry of
Human Settlements (MHS), the Metro
Manila Commission (MMC), and the
Kilusang Kabuhayan at Kaunlaran
(KKK). Under the program, the
barangays in Metro Manila could avail of
loans of P10,000.00 per barangay to
finance viable livelihood projects which
the Barangay Councils would identify
from the modules developed by the KKK
Secretariat or which, in the absence of
such modules, the Councils would
choose subject to the
evaluation/validation of the Secretariat.
After the seminar, Nizurtado received a
check for P10,000.00 intended for
Barangay Panghulo and issued in his
name. The check, however, could be
encashed only upon submission to the
Secretariat of a resolution approved by
the Barangay Council identifying the
livelihood project in which the loan
would be invested. He entrusted the
check to Romero for safekeeping.
In one of its regular sessions, which was
on the second Saturday of each month,
the Barangay Council of Panghulo
discussed the project in which to invest
the P10,000.00. Among the proposals
was that of Romero that a barangay
service center be established. But the
meeting ended without the Councilmen
agreeing on any livelihood project.
A few days after the meeting, Nizurtado
got back the check from Romero, saying
that he would return it because, as
admitted by Nizurtado during the trial,
the Councilmen could not agree on any
livelihood project. Nizurtado signed a
receipt dated August 4, 1983, for the
check "to be returned to the Metro
Manila Commission."

After a few more days, Nizurtado asked

Romero to sign an unaccomplished
resolution in mimeograph form. All the
blank spaces in the form were unfilledup, except those at the bottom which
were intended for the names of the
Barangay Councilmen, Secretary, and
Captain, which were already filled-up
and signed by Councilmen Marcelo
Sandel, Jose Bautista, Alfredo Aguilar,
Alfredo Dalmacio, F.A. Manalang (the
alleged Barangay Secretary), and
Nizurtado. In asking Romero to sign,
Nizurtado said that the MMC was
hurrying up the matter and that the
livelihood project to be stated in the
resolution was that proposed by Romero
barangay service center. Trusting
Nizurtado, Romero affixed his signature
above his typewritten name. When he
did so, the blank resolution did not yet
bear the signatures of Councilmen
Santos Gomez and Ceferino Roldan.
The blank resolution having already
been signed by Romero, Nizurtado
asked him to talk with Gomez and
secure the latter's signature. Romero
obliged and upon his pleading that his
proposed barangay service center
would be the one written in the blank
resolution, Gomez signed. But before he
returned the resolution, he had it
machine copied. The machine copy is
now marked Exhibit J.
Unknown to Romero and Gomez, the
blank but signed resolution was later on
accomplished by writing in the blank
space below the paragraph reading:
Barangay Council now
in this session had
already identified one
livelihood project with
the following title and
the following:

The other blank spaces in the resolution

were also filled-up. Thus "Panghulo,"
"Brgy. Hall," and "August 25, 1983" were
typewritten in the spaces for the name
of the Barangay, the place where and
the date when the council meeting took
place, respectively. In the blank spaces
for the names of the members of the
Council who attended the meeting were
typewritten the names of

Felix Nizurtado
Barangay Captain
Marcelo Sandel
Barangay Councilman
Alfredo Aguilar
Barangay Councilman
Santos Gomez
Barangay Councilman
Jose Bautista Barangay
Alfredo Dalmacio
Barangay Councilman
Ceferino Roldan
Barangay Councilman
The word "none" was inserted in the
space intended for the names of the
Councilmen who did not attend. The
resolution was given the number "17"
series of "1983." Finally, the last line
before the names and signatures of the
Councilmen was completed by
typewriting the date so that it now reads:
this 25th day of August,
The resolution as fully accomplished is
now marked Exhibit D.
Other supporting documents for the
encashment of the check of P10,000.00
were also prepared, signed, and filed by
Nizurtado. They were: Project
Identification (Exhibit B), Project
Application in which the borrower was
stated to be Samahang Kabuhayan ng
Panghulo (Exhibit C and C-1), Project
Location Map (Exhibit E), and
Promissory Note
(Exhibit F).
The application for loan having been
approved, the Promissory Note (Exhibit
F) was re-dated from August to October
18, 1983, placed in the name of the
Samahang Kabuhayan ng Panghulo
represented by Nizurtado, and made
payable in two equal yearly
amortizations of P5,000.00 each from its
date. The purpose of the loan was
stated to be
T-Shirt Manufacturing of round neck
shirts of various sizes and colors.
Nizurtado encashed the check on the
same day, October 18, 1983, and re-lent
the cash proceeds to himself, Sandel,
Aguilar, Bautista, Dalmacio, and Roldan
at P1,000.00, and to Manalang and Oro
Soledad, Barangay Court Secretary and
Barangay Secretary, respectively, at
P500.00 each.

On April 25, 1984, Nizurtado who was

then on leave wrote Sandel, then acting
Barangay Captain, informing him that
per record, he, Romero, and Gomez
had not made any remittance for the
account of their P1,000.00 loans from
the barangay livelihood fund of
P10,000.00 and advising him to collect,
through the Secretary or Treasurer.
Since Romero and Gomez had not
borrowed any amount from the said
fund, they told Sandel to ask Nizurtado if
he had any proof of their alleged loans.
So Sandel wrote Nizurtado on May 2,
1984, but the latter did not answer.
This attempt to collect from Romero and
Gomez prompted them to make
inquiries. They learned that the check
for P10,000.00 was indeed encashed by
Nizurtado and that the blank resolution
which they had signed was filled-up to
make it appear that in a Council meeting
where all councilmen were present on
August 25, 1983, T-shirt manufacturing
was adopted as the livelihood project of
Panghulo. But no such meeting
occurred on that day or on any other
day. Neither was Nizurtado authorized
by the Council to submit T-shirt
Manufacturing as the livelihood project
of Panghulo.
On August 9, 1984, Romero and Gomez
lodged their complaint against Nizurtado
with the Office of the Tanodbayan. After
due preliminary investigation, this case
was filed.
As of September 7, 1984, the members
of the Council who had received
P1,000.00 each, as well as Bacani (also
referred to as Manalang) and Soledad
who had received P500.00 each had
paid their respective loans to Nizurtado
who, in turn, remitted the payments to
the MMC on these dates:
In June 1987, after demands for
payment, Dalmacio remitted the balance
of P2,000.00 from his pocket because,
as acting Barangay Captain, he did not
want to leave the Barangay with an
indebtedness. 3
On the basis of its above findings, the Sandiganbayan
convicted the accused of the offense charged. The
dispositive portions of its decision, promulgated on 18
September 1992, read:
WHEREFORE, the Court finds Felix
Nizurtado y Victa guilty beyond
reasonable doubt of the complex crime
of malversation of public funds

committed through falsification of public

document and, appreciating in his
favor . . . two mitigating circumstances
and applying the Indeterminate
Sentence Law, imposes upon him the
penalties of imprisonment ranging from
and ELEVEN (11) DAYS of prision
correccional as minimum to EIGHT (8)
(1) DAY of prision mayor as maximum;
perpetual special disqualification; and a
fine of P10,000.00.
No pronouncement is made as to civil
liability, there having been complete
restitution of the amount malversed.

1. The penalty of prision correccional in

its medium and maximum periods, if the
amount involved in the misappropriation
or malversation does not exceed two
hundreds pesos.
2. The penalty of prision mayor in its
minimum and medium periods, if the
amount involved is more than two
hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its
maximum period to reclusion
temporal in its minimum period, if the
amount involved is more than six
thousand pesos but is less than twelve
thousand pesos.

With costs.
His motion for reconsideration having been denied,
Nizurtado has filed the instant petition for review
on certiorari. Petitioner faults the Sandiganbayan in that

1. It has committed grave abuse of

discretion in finding that Resolution No.
17, dated August 25, 1983, of the
Barangay Council of Panghulo,
Malabon, Metro Manila (Exh. "D") is a
falsified document and that the
petitioner is the forger thereof; and
2. It has committed serious error of law
and gravely abused its discretion in
finding petitioner guilty of malversation
of the amount of P10,000.00 which he
had received as a loan from the then
Metro Manila Commission in his
capacity as representative of the
Samahang Kabuhayan ng Barangay
Panghulo, Malabon, Metro Manila. 5
The Solicitor General Agrees in all respects with the
Sandiganbayan in its findings and judgment except
insofar as it has found petitioner to have likewise
committed the crime of falsification of a public document.
Article 217 of the Revised Penal Code provides:
Art. 217. Malversation of public funds or
property. Presumption of
malversation. Any public officer who,
by reason of the duties of his office, is
accountable for public funds or property,
shall appropriate the same, or shall take
or misappropriate or shall consent, or
through abandonment or negligence,
shall permit any other person to take
such public funds or property, wholly or
partially, or shall otherwise be guilty the
misappropriation or malversation of
such funds or property, shall suffer:

4. The penalty of reclusion temporal in

its medium and maximum periods, if the
amount involved is more than twelve
thousand pesos but is less than twentytwo thousand pesos. If the amount
exceeds the latter, the penalty shall
be reclusion temporal in its maximum
period to reclusion perpetua.
In all cases, persons guilty of
malversation shall also suffer the
penalty of perpetual special
disqualification and a fine equal to the
amount of the funds malversed or equal
to the total value of the property
The failure of a public officer to have
duly forthcoming any public funds or
property with which he is chargeable,
upon demand by any duly authorized
officer, shall be prima facie evidence
that he has put such missing funds or
property to personal use.
The elements of malversation, essential for the
conviction of an accused, under the above penal
provisions are that
(a) the offender is a public officer;
(b) he has the custody or control of
funds or property by reason of the duties
of his office;
(c) the funds or property involved are
public funds or property for which he is
accountable; and
(d) he has appropriated, taken or
misappropriated, or has consented to, or
through abandonment or negligence
permitted, the taking by another person
of, such funds or property.

Nizurtado was a public officer, having been the

Barangay Captain of Panghulo, Malabon, Metro Manila,
from 1983 to 1988; in that capacity, he received and later
encashed a check for P10,000.00, specifically intended
by way of a loan to the barangay for its livelihood
program; and the funds had come from the Ministry of
Human Settlements, the Metro Manila Commission and
"Kilusang Kabuhayan at Kaunlaran."
The only point of controversy is whether or not Nizurtado
has indeed misappropriated the funds.
Petitioner was able to encash the check on 18 October
1988 on the basis of a resolution of the Barangay
Council, submitted to the KKK Secretariat, to the effect
that a livelihood project, i.e., "T-shirt manufacturing," had
already been identified by the council. The money,
however, instead of its being used for the project, was
later lent to, along with petitioner, the members of the
Barangay Council. Undoubtedly, the act constituted
"misappropriation" within the meaning of the law. 6
Accused-appellant sought to justify the questioned act in
that it was only when the members of the Barangay
Council had realized that P10,000.00 was not enough to
support the T-shirt manufacturing project, that they
decided to distribute the money in the form of loans to
themselves. He submitted, in support thereof, a
belated 7certification issued by Rodolfo B. Banquicio,
Chief of District IV of the Support Staff and Malabon
Sub-District Officer of KKK, to the effect that Barangay
Captains were given discretionary authority to invest the
money in any viable project not falling within the list of
project modules provided by the MHS-NCR
Management. Lending the unutilized funds to the
members of the Barangay council could have hardly
been meant to be the viable project contemplated under
that certification. Furthermore, it would appear that only
Regional Action Officer Ismael Mathay, Jr., and Deputy
Regional Action Officer Lilia S. Ledesma were the
officials duly authorized to approve such projects upon
the recommendation of the KKK Secretariat. 8 We could
see no flaw in the ratiocination of the Sandiganbayan,
when, in rejecting this defense, it said:
The defense evidence that the
Barangay Council changed the T-shirt
Manufacturing to whatever business
ventures each members of the Council
would select for investment of his
P1,000.00 has, as already stated, little,
if any, probative value.
But assuming there was such a change,
the same is of no avail. The Resolution
marked Exhibit D expressly stated that
the P10,000.00 "shall only be
appropriated for the purpose/s as
provided in the issued policies and
guidelines of the program." The
guidelines, in turn, prescribed that the
livelihood project shall be identified from
the modules developed by the KKK
Secretariat or, as stipulated in the
Resolution itself, in the absence of such

modules, shall be chosen by the

Samahang Kabuhayan "subject to the
evaluation/validation of the KKK
Secretariat." There is absolutely no
showing that the alleged substitute
projects which each lendee of
P1,000.00 would select were among
those of the developed modules or were
submitted to the KKK Secretariat for
evaluation/validation. 9
Accused-appellant criticizes the Sandiganbayan for its
having failed to consider the fact that no valid demand
has been made, or could have been made, for the
repayment of the loaned sum. Demand merely raises
a prima faciepresumption that missing funds have been
put to personal use. The demand itself, however, is not
an element of, and not indispensable to constitute,
malversation. Even without a demand, malversation can
still be committed when enough facts, such as here, are
extant to prove it. 10
Accused-appellant was charged with having committed
the crime through the falsification of a public document
punishable under paragraph 2 of Article 171 of the
Revised Penal Code.
The pertinent provisions read:
Art. 171. Falsification by public officer,
employee or notary or ecclesiastic
minister. The penalty ofprision
mayor and a fine not to exceed 5,000
pesos shall be imposed upon any public
officer, employee, or notary who, taking
advantage of his official position, shall
falsify a document by committing any of
the following acts:
xxx xxx xxx
2. Causing it to appear that persons
have participated in any act or
proceeding when they did not in fact so
In falsification under the above-quoted
paragraph, the document need not be an
authentic official paper since its simulation, in
fact, is the essence of falsification. So, also, the
signatures appearing thereon need not
necessarily be forged. 11
In concluding that the Barangay Council resolution,
Exhibit "D," 12 was a falsified document for which
petitioner should be held responsible, the
Sandiganbayan gave credence to the testimonies of
Barangay Councilman Santos A. Gomez and Barangay
Treasurer Manuel P. Romero. The two testified that no
meeting had actually taken place on 25 August 1983, the
date when
"T-shirt manufacturing" was allegedly decided to be the
barangay livelihood project. The Sandiganbayan
concluded that Nizurtado had induced Romero and
Gomez to sign the blank resolution, Exhibit "J" 13 on the

representation that Romero's proposal to build a

barangay service center would so later be indicated in
that resolution as the barangay livelihood project.
The established rule is that unless the findings of fact of
the Sandiganbayan are bereft of substantial evidence to
support it, those findings are binding on this court.
The Sandiganbayan has considered the mitigating
circumstances of voluntary surrender and restitution in
favor of Nizurtado. Deputy Clerk of Court Luisabel
Alfonso Cortez, on 17 January 1989, has certified to the
voluntary surrender of the accused thusly:
Voluntary surrender (Art. 13, par. 7, Revised Penal
Code), therefore, may thus be treated as a modifying
circumstance independent and apart from restitution of
the questioned funds by petitioner (Art. 13, par. 10,
Revised Penal Code). We are convinced, furthermore,
that petitioner had no intention to commit so grave a
wrong as that committed. (Art. 13, par. 3, Revised Penal
Code), entitling him to three distinct mitigating
Under Article 48 of the Revised Penal Code, when a
single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious
crime shall be imposed, the same (the penalty) to be
applied in the maximum period. The penalty prescribed
for the offense of malversation of public funds, when the
amount involved exceeds six thousand pesos but does
not exceed twelve thousand pesos, is prision mayor in
its maximum period to reclusion temporal in its minimum
period; in addition, the offender shall be sentenced to
suffer perpetual special disqualification and to pay a fine
equal to the amount malversed (Art. 217[3], Revised
Penal Code). The penalty of prision mayor and a fine of
five thousand pesos is prescribed for the crime of
falsification under Article 171 of the Revised Penal Code.
The former (that imposed for the malversation), being
more severe than the latter (that imposed for the
falsification), is then the applicable prescribed penalty to
be imposed in its maximum period. The actual
attendance of two separate mitigating circumstances of
voluntary surrender and restitution, also found by the
Sandiganbayan and uncontested by the Solicitor
General, entitles the accused to the penalty next lower in
degree. For purposes of determining that next lower
degree, the full range of the penalty prescribed by law
for the offense, not merely the imposable penalty
because of its complex nature, should, a priori, be
considered. It is our considered view that the ruling
in People vs. Gonzales, 73 Phil. 549, as opposed to that
of People vs. Fulgencio, 92 Phil. 1069, is the correct rule
and it is thus here reiterated. In fine, the one degree
lower than prision mayor maximum to reclusion
temporal minimum is prision mayor minimum to prision
mayor medium (being the next two periods in the scale
of penalties [see Art. 64, par 5, in relation to Art. 61, par
5, Revised Penal Code]) the full range of which is six
years and one day to ten years. This one degree lower
penalty should, conformably with Article 48 of the Code

(the penalty for complex crimes), be imposed in its

maximum period or from eight years, eight months and
one day to ten years. The presence of the third
mitigating circumstance of praeter intentionem (lack of
intention to commit so grave a wrong as that committed)
would result in imposing a period the court may deem
applicable. 15Considering, however, that the penalty has
to be imposed in the maximum period, the only effect of
this additional mitigating circumstance is to impose only
the minimum portion of that maximum period, 16 that is,
from eight years, eight months and one day to nine
years, six months and ten days, from which range the
maximum of the indeterminate sentence shall be taken.
Under the Indeterminate Sentence Law (which can apply
since the maximum term of imprisonment would exceed
one year), the court is to impose an indeterminate
sentence, the minimum of which shall be anywhere
within the range of the penalty next lower in degree
(i.e., prision correccional in its medium period to prision
correccional in its maximum period or anywhere from
two years, four months and one day to six years) and the
maximum of which is that which the law prescribes after
considering the attendant modifying circumstances. In
view of the mitigating circumstances present in this case,
the fine of P10,000.00 may also be reduced (Art. 66,
Revised Penal Code) and, since the principal penalty is
higher than prision correccional, subsidiary
imprisonment would not be warranted. (Art. 39, par. 3,
Revised Penal Code).
The law and the evidence no doubt sustains Nizurtado's
conviction. Given all the attendant circumstances, it is,
nevertheless, the personal and humble opinion of the
assigned writer of this ponencia that appellant deserves
an executive commutation of the statutory minimum
sentence pronounced by this Court.
WHEREFORE, the decision of the Sandiganbayan
convicting Nizurtado for malversation of public funds
through falsification of public document is AFFIRMED
but the sentence, given the circumstances here
obtaining, is MODIFIED by imposing on petitioner a
reduced indeterminate sentence of from two years, four
months and one day to eight years, eight months and
one day, perpetual special disqualification and a fine of
Error in personae and Aberatius Ictus
PHILIPPINES, plaintiffappellee, vs. ARMANDO
RONILO TIONKO, accused-appellant.
Before us on automatic review is a joint decision of
the Regional Trial Court of the Eleventh Judicial Region
stationed in Davao City (Branch 15), finding accusedappellants guilty of frustrated homicide in Criminal Case
No. 35,459-96, and sentencing each of them to a prison

term of two years, four months, twenty-one days to eight

years and one day.
The two accused-appellants were also found guilty
of murder in Criminal Case No. 36,460-96, and were
sentenced to suffer the death penalty. The relevant facts
are summarized in the People's Brief as follows:

an "Indian Pana", one Rosalie Jimenez. The accused

performed all the acts of execution which could produce
the crime of Homicide, as a consequence but which did
not produce it by reason of a timely medical intervention,
a cause which is independent of the will of the
Contrary to law.

At about 9:00 in the evening of January 27, 1996, the

neighborhood of Barrio Malagamot, Panacan, Davao
City was awakened by a commotion. Irene Lantapon
was among those who went out to check what was
happening. She saw accused Armando Gemoya and
Candelario Aliazar running towards their house (TSN,
June 11, 1996, p. 20, November 5, 1996, p. 65).
After about half an hour, Gemoya and Aliazar came back
with Ronilo and Rolly Tionko, the former's uncles and the
latter's in-laws. They were armed with pipe, wood and an
improvised bow and arrow locally called "indian pana." It
was like a sling shot with an arrow made of nail with
feathers in the end. Addressing a group of people who
were huddled together, Ronilo Tionko stopped and
demanded an explanation for what happened to his
brother-in-law. They replied that nothing happened to
him and advised them to go home. Accused ignored
them and proceeded to the house of the Alferezes,
which was along the road in front of the school, when
they saw Wilfredo Alferez standing by the road waiting
for a taxi (ibid., June 11, 1996, p. 5, 16, 20-21;
November 4, 1996, p. 57; November 5, 1996, pp. 66 and
The quartet rushed to him. Ronilo Tionko beat him with a
cylindrical wood, Rolly Tionko with a pipe of the same
size while Aliazar held his arms behind him. Once
Gemoya had aimed his "indian pana," they stepped
aside to ensure that they would not be hit. Wilfredo
Alferez was hit directly on his left chest. Slumped to the
ground, Edgardo Jimenez rushed to his aid. His
daughter Rosalie, who had just come from school, tried
to pull him away. Irene Lantapon yelled at her to run as
Gemoya was about to shoot his "indian pana"
again. Before she could do so, she was hit in her left
ear. Then the four scampered away (ibid., June 11,
1996, pp. 6-7, 21-24; June 13, 1996, pp. 34-36;
November 4, 1996, pp. 57-58; November 5, 1996, pp.
66-67; November 6, 1996, pp. 79-81).
Rosalie Jimenez and Wilfredo Alferez were rushed to the
hospital. After minor treatment, she was declared out of
danger. Wilfredo Alferez was not as lucky. He was
pronounced dead on arrival (ibid., June 11, 1996, pp. 89; June 13, 1996, pp. 36, 41; November 6, 1996, p. 81).
Two separate Informations were filed against four
suspects, namely, the herein two accused-appellants
and two others who have remained at-large, to wit:
Criminal Case No. 36,459-96
That on or about January 27, 1996, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the accused, conspiring together and mutually
helping one another, with intent to kill, hit with the use of

Criminal Case No. 36,460-96

That on or about January 27, 1996 in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the accused, conspiring together and mutually
helping one another, with intent to kill, treachery and
abuse of superior strength, wilfully, unlawfully and
feloniously attacked, assaulted and hit with an "Indian
Pana" one Wilfredo Alferez which caused his
subsequent death.
Contrary to law.
pp. 7-8, Rollo.)
On May 28, 1996 and August 28, 1996, Armando
Gemoya and Ronilo Tionko, respectively, entered their
pleas of "not guilty", and the two criminal cases were
thereafter jointly tried, following which, judgment was
rendered disposing:
WHEREFORE, the prosecution having proven the guilt
of the accused beyond reasonable doubt in the two
cases, judgment is rendered as follows:
1. Criminal Case No. 36,459-96 -- the penalty of two
years, four months, twenty-one days to eight years and
one day is imposed on accused Armando Gemoya and
Ronilo Tionko for frustrated homicide with respect to
victim Rosalie Jimenez.
2. Criminal Case No. 36,460-96 -- the death penalty is
imposed on accused Armando Gemoya and Ronilo
Tionko for the murder of Wilfredo Alferez.
p. 27, Rollo.)
In their individual and separate briefs, the following
errors are assigned:
Accused-appellant Ronilo Tionko:

Accused-appellant Armando Gemoya:

admittedly discharged the weapon ("indian pana") which

hit a vital organ of the victim, causing his instantaneous
death. His only lame excuse is that, to defend himself,
he used the sling shot ("indian pana"), which he grabbed
form "somebody", against the victim in the course of a
tumultuous affray allegedly instigated by the victim

After reviewing the evidence on record we found no
compelling reason to depart from the factual findings of
the trial court that accused-appellants, in conspiracy with
one another, committed the crime of murder qualified by
abuse of superior strength. In People vs. Patalin (G.R.
No. 125539, July 27, 1999) we reiterated the ruling on
this matter, thus:
Of primordial consideration in appellate matters is the
legal principle that the assessment of the credibility of
witnesses and their testimony is a matter best
undertaken by the trial court because of its unique
opportunity to observe the witnesses firsthand and to
note their demeanor, conduct, and attitude under grilling
examination. We generally uphold and respect this
appraisal since as an appellate court, we do not deal
with live witnesses but only with the cold pages of a
written record.
p. 15)
Accused-appellant Gemoya claims that the uniform
narration of facts by prosecution witnesses is not
supported by the documentary and the expert's
testimony of the NBI Medico Legal Officer who
conducted the autopsy examination on the victim
Wilfredo Alferez. Dr. Ricardo M. Rodaje affirmed that he
found no other injury on the victim aside from the
puncture wound on his chest which was the sole cause
of death (TSN, July 3, 1996, p.46).
We are not persuaded by this argument.
It must be borne in mind that accused-appellant
Gemoya has not denied having executed the fatal act,
which caused the death of Wilfredo Alferez. He

When an accused admits having killed the victim,

the burden of proving his innocence is shifted to him. We
ruled in People vs. Manlulu (231 SCRA 701 [1994]) that
"by invoking self-defense, the accused admit killing
Alfaro. The burden of proof is thus shifted to them. Their
duty now is to establish by clear and convincing
evidence the lawful justification for the killing." Accusedappellant Gemoya can no longer invoke the
constitutional right of being presumed innocent of the
crime charged. As far as he is concerned, the crime of
murder in the case at bar is established once the
prosecution, establishes any of the qualifying
circumstances with proof beyond reasonable doubt. This
is because the fact of death and the cause thereof are
already established by the admission. The intent to kill is
likewise presumed from the fact of death, unless the
accused proves by convincing evidence that any of the
justifying circumstances in Article 11 or any of the
exempting circumstances in Article 12, both of the
Revised Penal Code, is present.
As we have earlier observed, however, we find no
cogent reason to disregard the trial court's factual
findings on this score. We find nothing upon review of
the record, which would convince us that accusedappellant Gemoya and his cohorts were not the
assailants in this case. The theory of self-defense has
not been duly established.
The fact that accused-appellant shot the victims
with an "indian pana" cannot be negated by supposed
inconsistencies between the testimony of the eyewitness
and the findings of the medico-legal officer who
conducted the autopsy examination. It matters not if
Wilfredo suffered no injury other than the fatal puncture
wound. His death was caused by that puncture wound,
and the fact that there were four assailants who ganged
up on the said victim is incontestable. These established
realities make accused-appellants criminally liable for
murder, qualified by abuse of superior strength.
Abuse of superior of superior strength is considered
whenever there is a notorious inequality of forces
between the victim and the aggressor, assessing a
superiority of strength notoriously advantageous for the
aggressor which is selected or taken advantage of in the
commission of the crime (People vs. Bongadillo, 234
SCRA 233 [1994]). When four armed assailants, two of
whom are accused-appellants in this case, ganged up
on one unarmed victim, it can only be said that
excessive force was purposely sought and employed.
Although only accused-appellant Gemoya may
have inflicted the fatal wound upon the victim in this
case, accused-appellant Tionko is also liable for the
crime of murder since evidently, the concerted acts of
the two accused-appellants, and their two other

companions, to obtain a common criminal objective

signify conspiracy among them. Ronilo Tionko beat
Wilfredo with a cylindrical wooden cane or "batuta", and
Rolly Tionko with a pipe, while Gemoya, after his
companions had step aside to give him a clear shot,
released his dart-missile at Wilfredo. A conspiracy exists
when two or more persons come to an agreement
concerning the commission of a felony and decide to
commit it (People vs. Taguba, 229 SCRA 188 [1994]).
Conspiracy need not be proved by direct evidence of a
prior agreement to commit the crime. It may be deduced
either from the mode and manner in which the offense
was committed or from the accused themselves pointing
to a community of interest or concerted action (People
vs. Gayon, 269 SCRA 587 [1997]). Herein accusedappellants and their companions ganging up upon a
single common victim until one of them is able to inflict
the fatal wound is clearly indicative of a common design
to assail and disable their victim. Conspiracy can be
inferred and proved by the totality of the acts of the
accused when said acts point to a joint purpose and
design (People vs. Bayrante, 235 SCRA 19 [1994]).
With or without himself inflicting injuries upon victim
Wilfredo, accused-appellant Ronilo Tionko is equally
liable for the crime of murder in the case at bar as
accused-appellant Gemoya.He cannot escape criminal
liability under the circumstances even though the
autopsy report indicated no other injuries except the
punctured wound on the victim's chest. A conspirator, no
matter how minimal his participation in the crime, is as
guilty as the principal perpetrator of the crime (People
vs. Alas, 274 SCRA 310 [1977]). Holding the victim to
render him immobile to enable his companions to
consummate their dastardly act (People vs. Dinglasan,
267 SCRA 29 [1997]) or standing guard or lending moral
support to the actual perpetrator is criminally responsible
to the same extent as the one who inflicted the fatal blow
(People vs. Diaz, 271 SCRA 504 [1997]).
As regards their second victim, Rosalie Jimenez,
however, we agree with accused-appellants that the trial
court erred in convicting them of frustrated homicide. As
correctly pointed out in the People's brief, the testimony
of Jerry Lantapon and Irene Lantapon concurred to the
effect that the hitting of Rosalie was accidental as the
second "indian pana" was intended for Wilfredo. The
intent to kill Rosalie which is essential if accusedappellants were to be held liable for frustrated homicide
is, therefore, absent.
The two accused-appellants herein are liable for the
crime resulting from Gemoya's act of releasing the
second "indian pana", which accidentally hit
Rosalie. Although Rosalie may not have been their
intended victim, accused-appellants, acting in conspiracy
with one another as we have earlier discussed, are liable
for the consequences of their felonious act (see:
Paragraph 1, Article 4, Revised Penal Code). Mistake in
the identity of the victim, which may either be (a) "error
in personae" (mistake of the person), or (b) "aberratio
ictus" (mistake in the blow), is neither exempting nor
mitigating (People vs. Gona, 54 Phil. 605 [1930]).
Accused-appellants, therefore, cannot escape the

criminal liability resulting from the injury suffered by

As for the penalty, even though it appears on record
that Rosalie received medical treatment immediately
after her injury, there is no evidence regarding the extent
of incapacity said injury caused her. Accordingly,
accused-appellants may only be held liable for the crime
of slight physical injury under Paragraph 2 of Article 266
of the Revised Penal Code, which provides:
ART. 266. Slight physical injuries and maltreatment.- The
crime of slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted
physical injuries which shall incapacitate the offended
party for labor from one to nine days, or shall require
medical attention during the same period.
2. By arresto menor or a fine not exceeding 200 pesos
and censure when the offender has caused physical
injuries which do not prevent the offended party from
engaging in his habitual work nor require medical
3. By arresto menor in its minimum period or a fine not
exceeding 50 pesos when the offender shall illtreat
another by deed without causing injury.
Since there is no showing that victim Rosalie
Jimenez was incapacitated from carrying out her
habitual work after the injury, both accused-appellants in
this case are sentenced to the penalty of arresto
menor or a fine of P200.00 and censure for the crime of
slight physical injury.
As to the imposition of the death penalty upon both
accused-appellants in this case, we agree with the
Solicitor General and accused-appellant Gemoya that
the trial court seriously erred in not considering the
mitigating circumstance of voluntary surrender in favor of
accused-appellant Gemoya. The trial court likewise
erred in imposing the maximum in the range of penalty
for murder.
Under Article 248 of the Revised Penal Code, the
crime of murder is punished by reclusion perpetua to
death. Where there are no aggravating and no mitigating
circumstances attendant in the commission of the crime,
the medium penalty shall be imposed. For the crime of
murder, the medium as well as the minimum penalty are
the same because the lower range penalty, reclusion
perpetua is an indivisible penalty.
Applying the rule to the case at bar where there is
the mitigating circumstance of voluntary surrender and
the absence of any aggravating circumstances other
than those already absorbed in the circumstances which
qualified the killing to murder (People vs. Cheng, 279
SCRA 129 [1997]), the minimum penalty of reclusion
perpetua should be imposed.
Finally, as correctly pointed out in the People's brief,
when death occurs as a result of a crime, the heirs of the

deceased are entitled to the amount of as P50,000.00

indemnity for the death of the victim without need of any
evidence or proof of damage (People vs. Galladan, G.R.
No. 126932, November 19, 1999; People vs. Espaola,
271 SCRA 689 [1997]). Thus, civil indemnity in the
amount of P50,000.00 for the death of Wilfredo Alferez
will have to be awarded in favor of his heirs. Accusedappellants being convicted as co-principals for the crime
of murder, the two shall be held solidarily liable for the
civil indemnity.
WHEREFORE, accused-appellants are found guilty
beyond reasonable doubt of: (a) slight physical injury in
Criminal Case No. 35,459-96 and each sentenced to a
determinate prison term of thirty (30) days of arresto
menor; and (b) murder in Criminal Case No. 36,460-96
and accordingly each sentenced to reclusion perpetua,
and ordered to solidarily pay civil indemnity in the
amount of Fifty Thousand Pesos (P50,000.00) to the
heirs of Wilfredo Alferez for the latter's death, the two
prison terms to be served concurrently with one
another. No special pronouncement is made as to costs.
Impossible Crime
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
PHILIPPINES, respondents.


Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of Appeals 1 affirming in toto the

judgment of the Regional Trial Court, Branch XIV,

Oroquieta City, finding him guilty of the crime of
attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge
Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and
Intod, Pangasian, Tubio and Daligdig had a meeting with
Aniceto Dumalagan. He told Mandaya that he wanted
Palangpangan to be killed because of a land dispute between
them and that Mandaya should accompany the four (4) men,
otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day,
Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed
with firearms, arrived at Palangpangan's house in Katugasan,
Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig
fired at said room. It turned out, however, that Palangpangan
was in another City and her home was then occupied by her
son-in-law and his family. No one was in the room when the
accused fired the shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by

witnesses. One witness testified that before the five men left
the premises, they shouted: "We will kill you (the witness) and
especially Bernardina Palangpangan and we will come back if
(sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted
murder. The court (RTC), as affirmed by the Court of Appeals,
holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment
by holding him liable only for an impossible crime, citing Article
4(2) of the Revised Penal Code which provides:
Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which
would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment or on
account of the employment of inadequate or
ineffectual means.
Petitioner contends that, Palangpangan's absence
from her room on the night he and his companions
riddled it with bullets made the crime inherently
On the other hand, Respondent People of the Philippines
argues that the crime was not impossible. Instead, the facts
were sufficient to constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out
. . . The crime of murder was not
consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2),
Revised Penal Code), but due to a cause or
accident other than petitioner's and his
accused's own spontaneous desistance (Art.
3., Ibid.) Palangpangan did not sleep at her
house at that time. Had it not been for this
fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal

Code. This seeks to remedy the void in the Old Penal

Code where:
. . . it was necessary that the execution of
the act has been commenced, that the
person conceiving the idea should have set
about doing the deed, employing appropriate
means in order that his intent might become
a reality, and finally, that the result or end
contemplated shall have been physically
possible. So long as these conditions were
not present, the law and the courts did not
hold him criminally liable. 5
This legal doctrine left social interests entirely
unprotected. 6 The Revised Penal Code, inspired by the

Positivist School, recognizes in the offender his

formidability, 7 and now penalizes an act which were it
not aimed at something quite impossible or carried out
with means which prove inadequate, would constitute a
felony against person or against property. 8 The rationale of
Article 4(2) is to punish such criminal tendencies.

Under this article, the act performed by the offender cannot

produce an offense against person or property because: (1)
the commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a)
inadequate or (b) ineffectual. 10

It was no fault of Strokes that the crime was

not committed. . . . It only became
impossible by reason of the extraneous
circumstance that Lane did not go that way;
and further, that he was arrested and
prevented from committing the murder. This
rule of the law has application only where it
is inherently impossible to commit the crime.
It has no application to a case where it
becomes impossible for the crime to be
committed, either by outside interference or
because of miscalculation as to a supposed
opportunity to commit the crime which fails to
materialize; in short it has no application to
the case when the impossibility grows out of
extraneous acts not within the control of the

That the offense cannot be produced because the commission

of the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the
act intended by the offender must be by its nature one
impossible of accomplishment. 11 There must be either

impossibility of accomplishing the intended act

to qualify the act an impossible crime.


in order

Legal impossibility occurs where the intended acts, even if

completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those
circumstances where (1) the motive, desire
and expectation is to perform an act in
violation of the law; (2) there is intention to
perform the physical act; (3) there is a
performance of the intended physical act;
and (4) the consequence resulting from the
intended act does not amount to a crime. 14

In the case of Clark vs. State, 20 the court held defendant

liable for attempted robbery even if there was nothing to

rob. In disposing of the case, the court quoted Mr.
Justice Bishop, to wit:
It being an accepted truth that defendant
deserves punishment by reason of his
criminal intent, no one can seriously doubt
that the protection of the public requires the
punishment to be administered, equally
whether in the unseen depths of the pocket,
etc., what was supposed to exist was really
present or not. The community suffers from
the mere alarm of crime. Again: Where the
thing intended (attempted) as a crime and
what is done is a sort to create alarm, in
other words, excite apprehension that the
evil; intention will be carried out, the incipient
act which the law of attempt takes
cognizance of is in reason committed.

The impossibility of killing a person already dead 15 falls in this

On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended
crime. 16 One example is the man who puts his hand in

the coat pocket of another with the intention to steal the

latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the
place where he thought his victim would be, although in reality,
the victim was not present in said place and thus, the petitioner
failed to accomplish his end.
One American case had facts almost exactly the same as this
one. In People vs. Lee Kong, 18 the accused, with intent to

kill, aimed and fired at the spot where he thought the

police officer would be. It turned out, however, that the
latter was in a different place. The accused failed to hit
him and to achieve his intent. The Court convicted the
accused of an attempt to kill. It held that:
The fact that the officer was not at the spot
where the attacking party imagined where he
was, and where the bullet pierced the roof,
renders it no less an attempt to kill. It is well
settled principle of criminal law in this
country that where the criminal result of an
attempt is not accomplished simply because
of an obstruction in the way of the thing to be
operated upon, and these facts are unknown
to the aggressor at the time, the criminal
attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed

to accomplish his intent to kill the victim because the

latter did not pass by the place where he was lying-in
wait, the court held him liable for attempted murder. The
court explained that:

In State vs. Mitchell, 21 defendant, with intent to kill, fired at

the window of victim's room thinking that the latter was

inside. However, at that moment, the victim was in
another part of the house. The court convicted the
accused of attempted murder.
The aforecited cases are the same cases which have been
relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However, we
cannot rely upon these decisions to resolve the issue at hand.
There is a difference between the Philippine and the American
laws regarding the concept and appreciation of impossible
In the Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of Crimes
and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the
said Code. Furthermore, in said jurisdiction, the impossibility of
committing the offense is merely a defense to an attempt
charge. In this regard, commentators and the cases generally
divide the impossibility defense into two categories: legal
versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court

held that:
. . . factual impossibility of the commission of
the crime is not a defense. If the crime could
have been committed had the circumstances
been as the defendant believed them to be,

it is no defense that in reality the crime was

impossible of commission.
Legal impossibility, on the other hand, is a defense which can
be invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting

to smuggle letters into and out of prison. The law

governing the matter made the act criminal if done
without knowledge and consent of the warden. In this
case, the offender intended to send a letter without the
latter's knowledge and consent and the act was
performed. However, unknown to him, the transmittal
was achieved with the warden's knowledge and consent.
The lower court held the accused liable for attempt but
the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility
as a defense to a charge of criminal attempt, as
suggested by the Model Penal Code and the proposed
federal legislation, is consistent with the overwhelming
modern view". In disposing of this contention, the Court
held that the federal statutes did not contain such
provision, and thus, following the principle of legality, no
person could be criminally liable for an act which was not
made criminal by law. Further, it said:

accomplishment. And under Article 4, paragraph 2 of the

Revised Penal Code, such is sufficient to make the act an
impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was
a supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against
persons or property, were it not for the inherent impossibility of
its accomplishment . . ." In that case all circumstances which
prevented the consummation of the offense will be treated as
an accident independent of the actor's will which is an element
of attempted and frustrated felonies.
hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is hereby
MODIFIED. We hereby hold Petitioner guilty of an impossible
crime as defined and penalized in Articles 4, paragraph 2, and
59 of the Revised Penal Code, respectively. Having in mind the
social danger and degree of criminality shown by Petitioner,
this Court sentences him to suffer the penalty of six (6) months
ofarresto mayor, together with the accessory penalties
provided by the law, and to pay the costs.

Congress has not yet enacted a law that

provides that intent plus act plus conduct
constitutes the offense of attempt
irrespective of legal impossibility until such
time as such legislative changes in the law
take place, this court will not fashion a new
non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be
committed is factually impossible or accomplishment, the
offender cannot escape criminal liability. He can be convicted
of an attempt to commit the substantive crime where the
elements of attempt are satisfied. It appears, therefore, that the
act is penalized, not as an impossible crime, but as an attempt
to commit a crime. On the other hand, where the offense is
legally impossible of accomplishment, the actor cannot be held
liable for any crime neither for an attempt not for an
impossible crime. The only reason for this is that in American
law, there is no such thing as an impossible crime. Instead, it
only recognizes impossibility as a defense to a crime charge
that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible
crimes are recognized. The impossibility of accomplishing the
criminal intent is not merely a defense, but an act penalized by
itself. Furthermore, the phrase "inherent impossibility" that is
found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere
The factual situation in the case at bar present a physical
impossibility which rendered the intended crime impossible of


Deputy C