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G.R. No.

171951

August 28, 2009

AMADO ALVARADO GARCIA, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
QUISUMBING, J.:
For review on certiorari is the Decision1 dated December 20, 2005 of the Court of Appeals in CAG.R.-CR No. 27544 affirming the Decision2 dated July 2, 2003 of the Regional Trial Court (RTC),
Branch 9, Aparri, Cagayan, which found petitioner Amado Garcia guilty beyond reasonable doubt of
homicide. Contested as well is the appellate courts Resolution 3 dated March 13, 2006 denying
petitioners Motion for Reconsideration.4
On February 10, 2000, petitioner was charged with murder in an Information that alleges as follows:
The undersigned, Provincial Prosecutor accuses AMADO GARCIA @ Manding of the crime of
Murder, defined and penalized under Article [248] of the Revised Penal Code, as amended by
Republic Act No. 7659, committed as follows:
That on or about September 29, 1999, in the municipality of Aparri, province of Cagayan, and within
the jurisdiction of this Honorable Court, the above-named accused, armed with a bottle, with intent to
kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and
feloniously assault, attack, box, club and maul one Manuel K. Chy, inflicting upon the latter fatal
injuries which caused his death.
CONTRARY TO LAW.5
Upon arraignment, petitioner entered a not guilty plea. Thereafter, trial on the merits ensued.
The factual antecedents are as follows:
At approximately 11:00 a.m. on September 26, 1999, petitioner, Fidel Foz, Jr. and Armando Foz had
a drinking spree at the apartment unit of Bogie Tacuboy, which was adjacent to the house of Manuel
K. Chy. At around 7:00 p.m., Chy appealed for the group to quiet down as the noise from the videoke
machine was blaring. It was not until Chy requested a second time that the group acceded.
Unknown to Chy, this left petitioner irate and petitioner was heard to have said in
the Ilocano vernacular, "Dayta a Manny napangas makaala caniac dayta." (This Manny is arrogant, I
will lay a hand on him.)6
On September 28, 1999, the group met again to celebrate the marriage of Ador Tacuboy not far from
Chys apartment. Maya Mabbun advised the group to stop singing lest they be told off again. This
further infuriated petitioner who remarked, "Talaga a napangas ni Manny saan ko a pagbayagen
daytoy," meaning, "This Manny is really arrogant, I will not let him live long." 7
Yet again, at around 12:00 p.m. on September 29, 1999, the group convened at the house of Foz
and Garcia. There, petitioner, Foz, Jr. and Fred Rillon mused over the drinking session on the 26th
and 28th of September and the confrontation with Chy. Enraged at the memory, petitioner blurted out

"Talaga a napangas dayta a day[t]oy a Manny ikabbut ko ita." (This Manny is really arrogant, I will
finish him off today.)8 Later that afternoon, the group headed to the store of Adela dela Cruz where
they drank until petitioner proposed that they move to Punta. On their way to Punta, the group
passed by the store of Aurelia Esquibel, Chys sister, and there, decided to have some drinks.
At this juncture, petitioner ordered Esquibel to call on Chy who, incidentally, was coming out of his
house at the time. Upon being summoned, the latter approached petitioner who suddenly punched
him in the face. Chy cried out, "Bakit mo ako sinuntok hindi ka naman [inaano]?" (Why did you box
me[?] Im not doing anything to you.)9But petitioner kept on assaulting him. Foz attempted to pacify
petitioner but was himself hit on the nose while Chy continued to parry the blows. Petitioner reached
for a bottle of beer, and with it, struck the lower back portion of Chys head. Then, Foz shoved Chy
causing the latter to fall.
When Chy found an opportunity to escape, he ran towards his house and phoned his wife Josefina
to call the police. Chy told Josefina about the mauling and complained of difficulty in breathing. Upon
reaching Chys house, the policemen knocked five times but nobody answered. Josefina arrived
minutes later, unlocked the door and found Chy lying unconscious on the kitchen floor, salivating. He
was pronounced dead on arrival at the hospital. The autopsy confirmed that Chy died of myocardial
infarction.
After trial in due course, the RTC of Aparri, Cagayan (Branch 9) found petitioner guilty beyond
reasonable doubt of homicide. The dispositive portion of the RTC decision reads:
WHEREFORE, the Court renders judgment:
1) Finding AMADO GARCIA guilty beyond reasonable doubt for the crime of HOMICIDE
defined and penalized by Article 249 of the Revised Penal Code and after applying in his
favor the provisions of the Indeterminate Sentence Law, hereby sentences him to suffer an
indeterminate prison term of TEN (10) YEARS OF PRISION MAYOR, as minimum, to
FOURTEEN (14) YEARS and EIGHT (8) MONTHS of RECLUSION TEMPORAL as
maximum;
2) Ordering him to pay the heirs of Manuel Chy the amount of FIFTY THOUSAND
(P50,000.00) PESOS, as death indemnity; TWO HUNDRED THOUSAND (P200,000.00)
PESOS, representing expenses for the wake and burial; THREE HUNDRED THOUSAND
(P300,000.00) PESOS, as moral damages; and THREE HUNDRED THIRTY[-]TWO
THOUSAND (P332,000.00] PESOS, as loss of earning, plus the cost of this suit.
SO ORDERED.10
On appeal, the Court of Appeals affirmed the conviction in a Decision dated December 20, 2005,
thus:
WHEREFORE, premises considered, appeal is hereby [DENIED] and the July 2, 2003 Decision of
the Regional Trial Court of Aparri, Cagayan, Branch [9], in Criminal Case No. 08-1185, is
hereby AFFIRMED IN TOTO.
SO ORDERED.11
Petitioner moved for reconsideration but his motion was denied in a Resolution dated March 13,
2006.

Hence, the instant appeal of petitioner on the following grounds:


I.
THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT THAT
PETITIONER IS THE ONE RESPONSIBLE FOR INFLICTING THE SLIGHT PHYSICAL INJURIES
SUSTAINED BY THE DECEASED MANUEL CHY.
II.
THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT FINDING
PETITIONER LIABLE FOR THE DEATH OF MANUEL CHY DESPITE THE FACT THAT THE
CAUSE OF DEATH IS MYOCARDIAL INFARCTION, A NON-VIOLENT RELATED CAUSE OF
DEATH.
III.
THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT WHICH
CONCLUDED THAT THE HEART FAILURE OF MANUEL CHY WAS DUE TO "FRIGHT OR SHOCK
CAUSED BY THE MALTREATMENT."
IV.
BOTH THE APPELLATE TRIBUNAL AND THE TRIAL COURT ERRED IN NOT ACQUITTING THE
PETITIONER ON THE GROUND OF REASONABLE DOUBT.12
In essence, the issue is whether or not petitioner is liable for the death of Manuel Chy.
In his undated Memorandum,13 petitioner insists on a review of the factual findings of the trial court
because the judge who penned the decision was not the same judge who heard the prosecution
evidence. He adds that the Court of Appeals had wrongly inferred from, misread and overlooked
certain relevant and undisputed facts, which, if properly considered, would justify a different
conclusion.14
At the onset, petitioner denies laying a hand on Manuel Chy. Instead, he implicates Armando Foz as
the author of the victims injuries. Corollarily, he challenges the credibility of Armandos brother, Fidel,
who testified concerning his sole culpability. Basically, petitioner disowns responsibility for Chys
demise since the latter was found to have died of myocardial infarction. In support, he amplifies the
testimony of Dr. Cleofas C. Antonio15 that Chys medical condition could have resulted in his death
anytime. Petitioner asserts that, at most, he could be held liable for slight physical injuries because
none of the blows he inflicted on Chy was fatal.
The Office of the Solicitor General reiterates the trial courts assessment of the witnesses and its
conclusion that the beating of Chy was the proximate cause of his death.
Upon careful consideration of the evidence presented by the prosecution as well as the defense in
this case, we are unable to consider the petitioners appeal with favor.
The present petition was brought under Rule 45 of the Rules of Court, yet, petitioner raises
questions of fact. Indeed, it is opportune to reiterate that this Court is not the proper forum from
which to secure a re-evaluation of factual issues, save where the factual findings of the trial court do

not find support in the evidence on record or where the judgment appealed from was based on a
misapprehension of facts.16 Neither exception applies in the instant case as would justify a departure
from the established rule.
Further, petitioner invokes a recognized exception to the rule on non-interference with the
determination of the credibility of witnesses. He points out that the judge who penned the decision is
not the judge who received the evidence and heard the witnesses. But while the situation obtains in
this case, the exception does not. The records reveal that Judge Conrado F. Manauis inhibited from
the proceedings upon motion of no less than the petitioner himself. Consequently, petitioner cannot
seek protection from the alleged adverse consequence his own doing might have caused. For us to
allow petitioner relief based on this argument would be to sanction a travesty of the Rules which was
designed to further, rather than subdue, the ends of justice.
We reiterate, the efficacy of a decision is not necessarily impaired by the fact that the ponente only
took over from a colleague who had earlier presided over the trial. It does not follow that the judge
who was not present during the trial, or a fraction thereof, cannot render a valid and just
decision.17 Here, Judge Andres Q. Cipriano took over the case after Judge Manauis recused himself
from the proceedings. Even so, Judge Cipriano not only heard the evidence for the defense, he also
had an opportunity to observe Dr. Cleofas Antonio who was recalled to clarify certain points in his
testimony. Worth mentioning, too, is the fact that Judge Cipriano presided during the taking of the
testimonies of Fidel Foz, Jr. and Alvin Pascua on rebuttal.
In any case, it is not unusual for a judge who did not try a case in its entirety to decide it on the basis
of the records on hand.18 He can rely on the transcripts of stenographic notes and calibrate the
testimonies of witnesses in accordance with their conformity to common experience, knowledge and
observation of ordinary men. Such reliance does not violate substantive and procedural due process
of law.19
The Autopsy Report on the body of Manuel Chy disclosed the following injuries:
POSTMORTEM FINDINGS
Body embalmed, well preserved.
Cyanotic lips and nailbeds.
Contusions, dark bluish red: 4.5 x 3.0 cms., lower portion of the left ear; 4.0 x 2.8 cms., left
inferior mastoid region; 2.5 x 1.1 cms., upper lip; 2.7 x 1.0 cms., lower lip; 5.8 x 5.5 cms., dorsum
of left hand.
Lacerated wound, 0.8 cm., involving mucosal surface of the upper lip on the right side.
No fractures noted.
Brain with tortuous vessels. Cut sections show congestion. No hemorrhage noted.
Heart, with abundant fat adherent on its epicardial surface. Cut sections show a reddish brown
myocardium with an area of hyperemia on the whole posterior wall, the lower portion of the anterior
wall and the inferior portion of the septum. Coronary arteries, gritty, with the caliber of the lumen
reduced by approximately thirty (30%) percent. Histopathological findings show mild fibrosis of the
myocardium.

Lungs, pleural surfaces, shiny; with color ranging from dark red to dark purple. Cut sections show a
gray periphery with reddish brown central portion with fluid oozing on pressure with some reddish
frothy materials noted. Histopathological examinations show pulmonary edema and hemorrhages.
Kidneys, purplish with glistening capsule. Cut sections show congestion. Histopathological
examinations show mild lymphocytic infiltration.
1avvphi1

Stomach, one-half (1/2) full with brownish and whitish materials and other partially digested food
particles.
CAUSE OF DEATH: - Myocardial Infarction. (Emphasis supplied.)20
At first, petitioner denied employing violence against Chy. In his undated Memorandum, however, he
admitted inflicting injuries on the deceased, albeit, limited his liability to slight physical injuries. He
argues that the superficial wounds sustained by Chy did not cause his death. 21 Quite the opposite,
however, a conscientious analysis of the records would acquaint us with the causal connection
between the death of the victim and the mauling that preceded it. In open court, Dr. Antonio identified
the immediate cause of Chys myocardial infarction:
ATTY. TUMARU:
Q: You diagnose[d] the cause of death to be myocardial infarction that is because there was an
occlusion in the artery that prevented the flowing of blood into the heart?
A: That was not exactly seen at the autopsy table but it changes, the hyperemic changes [in] the
heart muscle were the one[s] that made us [think] or gave strong conclusion that it was myocardial
infarction, and most likely the cause is occlusion of the blood vessels itself. (Emphasis supplied.)22
By definition, coronary occlusion23 is the complete obstruction of an artery of the heart, usually from
progressive arteriosclerosis24 or the thickening and loss of elasticity of the arterial walls. This can
result from sudden emotion in a person with an existing arteriosclerosis; otherwise, a heart attack
will not occur.25 Dr. Jessica Romero testified on direct examination relative to this point:
ATTY. CALASAN:
Q: Could an excitement trigger a myocardial infarction?
A: Excitement, I cannot say that if the patient is normal[;] that is[,] considering that the patient [does]
not have any previous [illness] of hypertension, no previous history of myocardial [ischemia], no
previous [arteriosis] or hardening of the arteries, then excitement [cannot] cause myocardial
infarction. (Emphasis supplied.)26
The Autopsy Report bears out that Chy has a mild fibrosis of the myocardium 27 caused by a previous
heart attack. Said fibrosis28 or formation of fibrous tissue or scar tissue rendered the middle and
thickest layer of the victims heart less elastic and vulnerable to coronary occlusion from sudden
emotion. This causation is elucidated by the testimony of Dr. Antonio:
ATTY. CALASAN:
Q: You said that the physical injuries will cause no crisis on the part of the victim, Doctor?
A: Yes, sir.

Q: And [these] physical injuries [were] caused by the [boxing] on the mouth and[/]or hitting on the
nape by a bottle?
A: Yes, sir.
Q: On the part of the deceased, that [was] caused definitely by emotional crisis, Doctor?
A: Yes, sir.
Q: And because of this emotional crisis the heart palpitated so fast, so much so, that there was less
oxygen being pumped by the heart?
A: Yes, sir.
Q: And definitely that caused his death, Doctor?
A: Yes, sir, it could be.29
In concurrence, Dr. Antonio A. Paguirigan also testified as follows:
ATTY. CALASAN:
Q: I will repeat the question Dr. Antonio testified that the deceased died because of the blow that
was inflicted, it triggered the death of the deceased, do you agree with his findings, Doctor?
A: Not probably the blow but the reaction sir.
Q: So you agree with him, Doctor?
A: It could be, sir.
Q: You agree with him on that point, Doctor?
A: Yes, sir.30
It can be reasonably inferred from the foregoing statements that the emotional strain from the
beating aggravated Chys delicate constitution and led to his death. The inevitable conclusion then
surfaces that the myocardial infarction suffered by the victim was the direct, natural and logical
consequence of the felony that petitioner had intended to commit.
Article 4(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: (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.31
lawph!l

In this case, petitioner was committing a felony when he boxed the victim and hit him with a bottle.
Hence, the fact that Chy was previously afflicted with a heart ailment does not alter petitioners
liability for his death. Ingrained in our jurisprudence is the doctrine laid down in the case of United
States v. Brobst32 that:
x x x where death results as a direct consequence of the use of illegal violence, the mere fact that
the diseased or weakened condition of the injured person contributed to his death, does not relieve
the illegal aggressor of criminal responsibility.33
In the same vein, United States v. Rodriguez34 enunciates that:
x x x although the assaulted party was previously affected by some internal malady, if, because of a
blow given with the hand or the foot, his death was hastened, beyond peradventure he is
responsible therefor who produced the cause for such acceleration as the result of a voluntary and
unlawfully inflicted injury. (Emphasis supplied.)35
In this jurisdiction, a person committing a felony is responsible for all the natural and logical
consequences resulting from it although the unlawful act performed is different from the one he
intended;36 "el que es causa de la causa es causa del mal causado" (he who is the cause of the
cause is the cause of the evil caused).37 Thus, the circumstance that petitioner did not intend so
grave an evil as the death of the victim does not exempt him from criminal liability. Since he

deliberately committed an act prohibited by law, said condition simply mitigates his guilt in
accordance with Article 13(3)38 of the Revised Penal Code.39 Nevertheless, we must appreciate as
mitigating circumstance in favor of petitioner the fact that the physical injuries he inflicted on the
victim, could not have resulted naturally and logically, in the actual death of the victim, if the latters
heart was in good condition.
Considering that the petitioner has in his favor the mitigating circumstance of lack of intention to
commit so grave a wrong as that committed without any aggravating circumstance to offset it, the
imposable penalty should be in the minimum period, that is, reclusion temporal in its minimum
period,40or anywhere from twelve (12) years and one (1) day to fourteen years (14) years and eight
(8) months. Applying the Indeterminate Sentence Law,41 the trial court properly imposed upon
petitioner an indeterminate penalty of ten (10) years of prisin mayor, as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal as maximum.
We shall, however, modify the award of damages to the heirs of Manuel Chy for his loss of earning
capacity in the amount of P332,000. In fixing the indemnity, the victims actual income at the time of
death and probable life expectancy are taken into account. For this purpose, the Court adopts the
formula used in People v. Malinao:42
Net earning capacity = 2/3 x (80-age of x a reasonable portion of the the victim at the annual net
income which time of this death) would have been received
by the heirs for support.43
Branch 9 of the Aparri, Cagayan RTC took judicial notice of the salary which Manuel Chy was
receiving as a sheriff of the court. At the time of his death, Chy was 51 years old and was earning a
gross monthly income ofP10,600 or a gross annual income of P127,200. But, in view of the victims
delicate condition, the trial court reduced his life expectancy to 10 years. It also deducted P7,000
from Chys salary as reasonable living expense. However, the records are bereft of showing that the
heirs of Chy submitted evidence to substantiate actual living expenses. And in the absence of proof
of living expenses, jurisprudence44 approximates net income to be 50% of the gross income.
Accordingly, by reason of his death, the heirs of Manuel Chy should be awarded P1,229,600 as loss
of earning capacity, computed as follows:
Net earning capacity

2/3 x (80-51) x [P127,200 - 1/2 (P127,200)]

2/3 x (29) x P63,600

19 1/3 x P63,600

P1,229,600

We sustain the trial courts grant of funerary expense of P200,000 as stipulated by the parties45 and
civil indemnity of P50,000.46 Anent moral damages, the same is mandatory in cases of murder and
homicide, without need of allegation and proof other than the death of the victim. 47 However, in
obedience to the controlling case law, the amount of moral damages should be reduced to P50,000.
WHEREFORE, the Decision dated December 20, 2005 and the Resolution dated March 13, 2006 of
the Court of Appeals in CA-G.R.-CR No. 27544 are AFFIRMED with MODIFICATION in that the
award of moral damages is reduced to P50,000. Petitioner is further ordered to indemnify the heirs
of Manuel K. Chy P50,000 as civil indemnity; P200,000, representing expenses for the wake and
burial; and P1,229,600 as loss of earning capacity. No pronouncement as to costs.

G.R. No. 72964 January 7, 1988


FILOMENO URBANO, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the
decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty
beyond reasonable doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his
ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the
tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water
coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion
of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass.
He asked them who was responsible for the opening of the irrigation canal and Javier admitted that
he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A
quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle,
by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in
parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by
Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing
a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced
and prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about
50 meters away from where the incident happened. Emilio then went to the house of Barangay
Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis
instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San
Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The
group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to
Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available
medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla
who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20 years of age,
married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23,
1980 and found the following:
1 -Incised wound 2 inches in length at the upper portion of the lesser palmar
prominence, right.

As to my observation the incapacitation is from (7-9) days period. This wound was
presented to me only for medico-legal examination, as it was already treated by the
other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences.
Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980,
the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared
before this Station accompanied by brgy. councilman Felipe Solis and settled their
case amicably, for they are neighbors and close relatives to each other. Marcelo
Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all
the expenses in his medical treatment, and promising to him and to this Office that
this will never be repeated anymore and not to harbour any grudge against each
other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional
P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a
very serious condition. When admitted to the hospital, Javier had lockjaw and was having
convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious
condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm
which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr.
Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR
after muscular spasm. 02 inhalation administered. Ambo bag resuscitation and
cardiac massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18
P.M. PMC done and cadaver brought home by relatives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide
before the then Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as
charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS
of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs
of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of
insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa,
Rizal upon finality of the decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the
award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based
on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan,
and up to the present having been re-elected to such position in the last barangay
elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a typhoon that swept
Pangasinan and other places of Central Luzon including San Fabian, a town of said
province;
That during the typhoon, the sluice or control gates of the Bued irrigation dam which
irrigates the ricefields of San Fabian were closed and/or controlled so much so that
water and its flow to the canals and ditches were regulated and reduced;
That due to the locking of the sluice or control gates of the dam leading to the canals
and ditches which will bring water to the ricefields, the water in said canals and
ditches became shallow which was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the area affected, with my
secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the late Marcelo
Javier catching fish in the shallow irrigation canals with some companions;
That few days there after,or on November l5, l980, I came to know that said Marcelo
Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code which provides that
"Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the
wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused
is criminally responsible for acts committed by him in violation of law and for all the natural and
logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of
which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which
was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and
that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was the natural and logical
consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus,
the appellate court said:
The claim of appellant that there was an efficient cause which supervened from the
time the deceased was wounded to the time of his death, which covers a period of 23
days does not deserve serious consideration. True, that the deceased did not die
right away from his wound, but the cause of his death was due to said wound which
was inflicted by the appellant. Said wound which was in the process of healing got
infected with tetanus which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim
suffered lockjaw because of the infection of the wound with tetanus. And there is no
other way by which he could be infected with tetanus except through the wound in
his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's
death was the wound which got infected with tetanus. And the settled rule in this
jurisdiction is that an accused is liable for all the consequences of his unlawful act.
(Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
418).
Appellant's allegation that the proximate cause of the victim's death was due to his
own negligence in going back to work without his wound being properly healed, and
lately, that he went to catch fish in dirty irrigation canals in the first week of
November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle
out of the predicament he found himself in. If the wound had not yet healed, it is
impossible to conceive that the deceased would be reckless enough to work with a
disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due
to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got
infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants
with his bare hands exposing the wound to harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by Urbano was infected with
tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound,
which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow
got infected with tetanus However, as to when the wound was infected is not clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of
proximate cause:
xxx xxx xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696
of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred."And more comprehensively, "the proximate legal cause is that acting first
and producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as
an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time
Javier was wounded until his death which would exculpate Urbano from any liability for Javier's
death.
We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of
patients become symptomatic within 14 days. A short incubation period indicates
severe disease, and when symptoms occur within 2 or 3 days of injury the mortality
rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability, and headache
are encountered occasionally, but the commonest presenting complaints are pain
and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus in the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the region of
the injury. In the vast majority, however, most muscles are involved to some degree,
and the signs and symptoms encountered depend upon the major muscle groups
affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval
referred to as the onset time. As in the case of the incubation period, a short onset
time is associated with a poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the periphery, which increases rigidity and
causes simultaneous and excessive contraction of muscles and their antagonists.
Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing
frequency. Respiration may be impaired by laryngospasm or tonic contraction of

respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to
irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days and an
onset time of more than 6 days. Trismus is usually present, but dysphagia is absent
and generalized spasms are brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset time; trismus is marked, dysphagia
and generalized rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent
prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine,
1983 Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or
on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at
the time, it is more medically probable that Javier should have been infected with only a mild cause
of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident
or more than 14 days after the infliction of the wound. Therefore, the onset time should have been
more than six days. Javier, however, died on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing
with a criminal conviction, the proof that the accused caused the victim's death must convince a
rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause
and the injury a distinct, successive, unrelated, and efficient cause of the injury, even
though such injury would not have happened but for such condition or occasion. If no

danger existed in the condition except because of the independent cause, such
condition was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances which result in injury because of
the prior defective condition, such subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very
least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's
criminal liability in this respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement
where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement
of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508,
Section 2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and remote cause is limited to the
criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also
free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be
civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July
29, 1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must be established
beyond reasonable doubt, only a preponderance of evidence is required in a civil
action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes
the civil liability of the accused only when it includes a declaration that the facts from
which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129
SCRA 559).
The reason for the provisions of article 29 of the Civil Code, which provides that the
acquittal of the accused on the ground that his guilt has not been proved beyond
reasonable doubt does not necessarily exempt him from civil liability for the same act
or omission, has been explained by the Code Commission as follows:
The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in the
Philippine legal system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable
doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is
derived from the criminal offense, when the latter is not proved, civil
liability cannot be demanded.
This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning fails to
draw a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the distinction.
The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the

punishment or correction of the offender while the other is for


reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of
the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnity
the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private
right to be proved only by a preponderance of evidence? Is the right
of the aggrieved person any less private because the wrongful act is
also punishable by the criminal law?
"For these reasons, the Commission recommends the adoption of the
reform under discussion. It will correct a serious defect in our law. It
will close up an inexhaustible source of injustice-a cause for
disillusionment on the part of the innumerable persons injured or
wronged."
The respondent court increased the P12,000.00 indemnification imposed by the trial court to
P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly
examined. This aspect of the case calls for fuller development if the heirs of the victim are so
minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then
Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner
is ACQUITTED of the crime of homicide. Costs de oficio.
G.R. No. 186412

September 7, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
ORLITO VILLACORTA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No.
02550, which affirmed the Decision2 dated September 22, 2006 of the Regional Trial Court (RTC),
Branch 170, of Malabon, in Criminal Case No. 27039-MN, finding accused-appellant Orlito Villacorta
(Villacorta) guilty of murder, and sentencing him to suffer the penalty of reclusion perpetua and to
pay the heirs of Danilo Cruz (Cruz) the sum ofP50,000.00 as civil indemnity, plus the costs of suit.
On June 21, 2002, an Information3 was filed against Villacorta charging him with the crime of murder,
as follows:

That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a sharpened bamboo stick, with intent
to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and stab with the said weapon one DANILO SALVADOR CRUZ, thereby inflicting
upon the victim serious wounds which caused his immediate death.
When arraigned on September 9, 2002, Villacorta pleaded not guilty.4
During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja) and Dr. Domingo
Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was tending her sari-sari store located at C-4 Road,
Bagumbayan, Navotas. Both Cruz and Villacorta were regular customers at Mendejas store. At
around two oclock in the morning, while Cruz was ordering bread at Mendejas store, Villacorta
suddenly appeared and, without uttering a word, stabbed Cruz on the left side of Cruzs body using a
sharpened bamboo stick. The bamboo stick broke and was left in Cruzs body. Immediately after the
stabbing incident, Villacorta fled. Mendeja gave chase but failed to catch Villacorta. When Mendeja
returned to her store, she saw her neighbor Aron removing the broken bamboo stick from Cruzs
body.5 Mendeja and Aron then brought Cruz to Tondo Medical Center.6
Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital. When Cruz
sustained the stab wound on January 23, 2002, he was taken to the Tondo Medical Center, where
he was treated as an out-patient. Cruz was only brought to the San Lazaro Hospital on February 14,
2002, where he died the following day, on February 15, 2002. While admitting that he did not
personally treat Cruz, Dr. Belandres was able to determine, using Cruzs medical chart and
diagnosis, that Cruz died of tetanus infection secondary to stab wound. 7 Dr. Belandres specifically
described the cause of Cruzs death in the following manner:
The wound was exposed x x spurs concerted, the patient developed difficulty of opening the
mouth, spastivity of the body and abdominal pain and the cause of death is hypoxic encephalopathy
neuro transmitted due to upper G.I. bleeding x x x. Diagnosed of Tetanus, Stage III. 8
The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who attended to Cruz at
the San Lazaro Hospital, but the prosecution and defense agreed to dispense with Dr. Matias
testimony based on the stipulation that it would only corroborate Dr. Belandres testimony on Cruz
dying of tetanus.
For its part, the defense presented Villacorta himself, who denied stabbing Cruz. Villacorta
recounted that he was on his way home from work at around two oclock in the morning of January
21, 2002. Upon arriving home, Villacorta drank coffee then went outside to buy cigarettes at a
nearby store. When Villacorta was about to leave the store, Cruz put his arm around Villacortas
shoulder. This prompted Villacorta to box Cruz, after which, Villacorta went home. Villacorta did not
notice that Cruz got hurt. Villacorta only found out about Cruzs death upon his arrest on July 31,
2002.9
On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of murder, qualified by
treachery. The dispositive portion of said Decision reads:

WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta guilty beyond
reasonable doubt of the crime of Murder and is hereby sentenced to suffer the penalty of reclusion
perpetua and to pay the heirs of Danilo Cruz the sum of P50,000.00 as civil indemnity for the death
of said victim plus the costs of suit.10
Villacorta, through his counsel from the Public Attorneys Office (PAO), filed a notice of appeal to
assail his conviction by the RTC.11 The Court of Appeals directed the PAO to file Villacortas brief,
within thirty days from receipt of notice.
Villacorta filed his Appellants Brief12 on May 30, 2007; while the People, through the Office of the
Solicitor General (OSG), filed its Appellee's Brief13 on October 2, 2007.
On July 30, 2008, the Court of Appeals promulgated its Decision affirming in toto the RTC judgment
of conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant appeal.
Villacorta manifested that he would no longer file a supplemental brief, as he was adopting the
Appellant's Brief he filed before the Court of Appeals. 14 The OSG, likewise, manifested that it was no
longer filing a supplemental brief. 15
In his Appellants Brief, Villacorta raised the following assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE COULD ONLY
BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing incident. It was Mendeja
who positively identified Villacorta as the one who stabbed Cruz in the early morning of January 23,
2002. Villacorta asserts that Mendejas account of the stabbing incident is replete with
inconsistencies and incredulities, and is contrary to normal human experience, such as: (1) instead
of shouting or calling for help when Villacorta allegedly stabbed Cruz, Mendeja attempted to run after
and catch Villacorta; (2) while, by Mendejas own account, there were other people who witnessed
the stabbing and could have chased after Villacorta, yet, oddly, only Mendeja did; (3) if Cruz was
stabbed so swiftly and suddenly as Mendeja described, then it would have been physically
improbable for Mendeja to have vividly recognized the perpetrator, who immediately ran away after

the stabbing; (4) after the stabbing, both Villacorta and Cruz ran in opposite directions; and (5)
Mendeja had said that the bamboo stick, the alleged murder weapon, was left at her store, although
she had also stated that the said bamboo stick was left embedded in Cruzs body. Villacorta
maintains that the aforementioned inconsistencies are neither trivial nor inconsequential, and should
engender some doubt as to his guilt.
We are not persuaded.
To begin with, it is fundamental that the determination by the trial court of the credibility of witnesses,
when affirmed by the appellate court, is accorded full weight and credit as well as great respect, if
not conclusive effect. Such determination made by the trial court proceeds from its first-hand
opportunity to observe the demeanor of the witnesses, their conduct and attitude under grilling
examination, thereby placing the trial court in the unique position to assess the witnesses' credibility
and to appreciate their truthfulness, honesty and candor.17
In this case, both the RTC and the Court of Appeals gave full faith and credence to the testimony of
prosecution witness Mendeja. The Court of Appeals rejected Villacortas attempts to impugn
Mendejas testimony, thus:
Appellants reason for concluding that witness Mendejas testimony is incredible because she did not
shout or call for help and instead run after the appellant, fails to impress the Court because persons
who witness crimes react in different ways.
"x x x the makings of a human mind are unpredictable; people react differently and there is no
standard form of behavior when one is confronted by a shocking incident.
Equally lacking in merit is appellants second reason which is, other persons could have run after the
appellant after the stabbing incident. As explained by witness Mendeja, the other person whom she
identified as Aron was left to assist the appellant who was wounded. Further, the stabbing occurred
at 2:00 oclock in the morning, a time when persons are expected to be asleep in their house, not
roaming the streets.
His [Villacortas] other argument that the swiftness of the stabbing incident rendered impossible or
incredible the identification of the assailant cannot likewise prosper in view of his admission that he
was in the store of witness Mendeja on January 23, 2002 at 2:00 oclock in the morning and that he
assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of record cannot support appellants
argument. Appellant and the victim were known to witness Mendeja, both being her friends and
regular customers. There was light in front of the store. An opening in the store measuring 1 and
meters enables the person inside to see persons outside, particularly those buying articles from the
store. The victim was in front of the store buying bread when attacked. Further, immediately after the
stabbing, witness Mendeja ran after the appellant giving her additional opportunity to identify the
malefactor. Thus, authorship of the attack can be credibly ascertained. 18
Moreover, Villacorta was unable to present any reason or motivation for Mendeja to fabricate such a
lie and falsely accuse Villacorta of stabbing Cruz on January 23, 2002. We have ruled time and
again that where the prosecution eyewitness was familiar with both the victim and accused, and

where the locus criminis afforded good visibility, and where no improper motive can be attributed to
the witness for testifying against the accused, then her version of the story deserves much weight. 19
The purported inconsistencies in Mendejas testimony pointed out by Villacorta are on matters that
have no bearing on the fundamental fact which Mendeja testified on: that Villacorta stabbed Cruz in
the early morning of January 23, 2002, right in front of Mendejas store.
In the face of Mendejas positive identification of Villacorta as Cruzs stabber, Villacorta could only
muster an uncorroborated denial. Denial, like alibi, as an exonerating justification, is inherently weak
and if uncorroborated, regresses to blatant impotence. Like alibi, it also constitutes self-serving
negative evidence which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters.20
Hence, we do not deviate from the foregoing factual findings of the RTC, as affirmed by the Court of
Appeals.
Nevertheless, there is merit in the argument proffered by Villacorta that in the event he is found to
have indeed stabbed Cruz, he should only be held liable for slight physical injuries for the stab
wound he inflicted upon Cruz. The proximate cause of Cruzs death is the tetanus infection, and not
the stab wound.
Proximate cause has been defined as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result would
not have occurred."21
In this case, immediately after he was stabbed by Villacorta in the early morning of January 23,
2002, Cruz was rushed to and treated as an out-patient at the Tondo Medical Center. On February
14, 2002, Cruz was admitted to the San Lazaro Hospital for symptoms of severe tetanus infection,
where he died the following day, on February 15, 2002. The prosecution did not present evidence of
the emergency medical treatment Cruz received at the Tondo Medical Center, subsequent visits by
Cruz to Tondo Medical Center or any other hospital for follow-up medical treatment of his stab
wound, or Cruzs activities between January 23 to February 14, 2002.
In Urbano v. Intermediate Appellate Court,22 the Court was confronted with a case of very similar
factual background as the one at bar. During an altercation on October 23, 1980, Urbano hacked
Javier with a bolo, inflicting an incised wound on Javiers hand. Javier was treated by Dr. Meneses.
On November 14, 1980, Javier was rushed to the hospital with lockjaw and convulsions. Dr.
Exconde, who attended to Javier, found that Javiers serious condition was caused by tetanus
infection. The next day, on November 15, 1980, Javier died. An Information was filed against Urbano
for homicide. Both the Circuit Criminal Court and the Intermediate Appellate Court found Urbano
guilty of homicide, because Javier's death was the natural and logical consequence of Urbano's
unlawful act. Urbano appealed before this Court, arguing that Javiers own negligence was the
proximate cause of his death. Urbano alleged that when Dr. Meneses examined Javiers wound, he
did not find any tetanus infection and that Javier could have acquired the tetanus germs when he
returned to work on his farm only two (2) weeks after sustaining his injury. The Court granted
Urbanos appeal.
We quote extensively from the ratiocination of the Court in Urbano:

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time
Javier was wounded until his death which would exculpate Urbano from any liability for Javier's
death.
We look into the nature of tetanus"The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable
symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic
within 14 days. A short incubation period indicates severe disease, and when symptoms occur within
2 or 3 days of injury the mortality rate approaches 100 percent.
"Non-specific premonitory symptoms such as restlessness, irritability, and headache are
encountered occasionally, but the commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the disease progresses, stiffness gives way to
rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus is the
commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw.
As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast
majority, however, most muscles are involved to some degree, and the signs and symptoms
encountered depend upon the major muscle groups affected.
"Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval referred to as
the onset time. As in the case of the incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which
prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage
and death.
"Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more
than 6 days.Trismus is usually present, but dysphagia is absent and generalized spasms are brief
and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time;
trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate
even during spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or
on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at
the time, it is more medically probable that Javier should have been infected with only a mild case of
tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident
or more than 14 days after the infliction of the wound. Therefore, the onset time should have been
more than six days. Javier, however, died on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died. 23
The incubation period for tetanus infection and the length of time between the hacking incident and
the manifestation of severe tetanus infection created doubts in the mind of the Court that Javier
acquired the severe tetanus infection from the hacking incident. We explained in Urbano that:
The rule is that the death of the victim must be the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing
with a criminal conviction, the proof that the accused caused the victim's death must convince a
rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the basis of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible, if
there intervened between such prior or remote cause and the injury a distinct, successive, unrelated,
and efficient cause of the injury, even though such injury would not have happened but for such
condition or occasion. If no danger existed in the condition except because of the independent
cause, such condition was not the proximate cause. And if an independent negligent act or defective
condition sets into operation the instances, which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p.
125)24
We face the very same doubts in the instant case that compel us to set aside the conviction of
Villacorta for murder. There had been an interval of 22 days between the date of the stabbing and
the date when Cruz was rushed to San Lazaro Hospital, exhibiting symptoms of severe tetanus
infection. If Cruz acquired severe tetanus infection from the stabbing, then the symptoms would have
appeared a lot sooner than 22 days later. As the Court noted in Urbano, severe tetanus infection has
a short incubation period, less than 14 days; and those that exhibit symptoms with two to three days
from the injury, have one hundred percent (100%) mortality. Ultimately, we can only deduce that
Cruzs stab wound was merely the remote cause, and its subsequent infection with tetanus might
have been the proximate cause of Cruz's death. The infection of Cruzs stab wound by tetanus was
an efficient intervening cause later or between the time Cruz was stabbed to the time of his death.

However, Villacorta is not totally without criminal liability. Villacorta is guilty of slight physical injuries
under Article 266(1) of the Revised Penal Code for the stab wound he inflicted upon Cruz. Although
the charge in the instant case is for murder, a finding of guilt for the lesser offense of slight physical
injuries may be made considering that the latter offense is necessarily included in the former since
the essential ingredients of slight physical injuries constitute and form part of those constituting the
offense of murder.25
1wphi1

We cannot hold Villacorta criminally liable for attempted or frustrated murder because the
prosecution was not able to establish Villacortas intent to kill. In fact, the Court of Appeals expressly
observed the lack of evidence to prove such an intent beyond reasonable doubt, to wit:
Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him on the left side
of the body and then immediately fled. The instrument used is not as lethal as those made of
metallic material. The part of the body hit is not delicate in the sense that instant death can ensue by
reason of a single stab wound. The assault was done only once. Thus, there is doubt as to whether
appellant had an intent to kill the victim, which should be resolved in favor of the appellant. x x x. 26
The intent must be proved in a clear and evident manner to exclude every possible doubt as to the
homicidal (or murderous) intent of the aggressor. The onus probandi lies not on accused-appellant
but on the prosecution. The inference that the intent to kill existed should not be drawn in the
absence of circumstances sufficient to prove this fact beyond reasonable doubt. When such intent is
lacking but wounds were inflicted, the crime is not frustrated murder but physical injuries only.27
Evidence on record shows that Cruz was brought to Tondo Medical Center for medical treatment
immediately after the stabbing incident. Right after receiving medical treatment, Cruz was then
released by the Tondo Medical Center as an out-patient. There was no other evidence to establish
that Cruz was incapacitated for labor and/or required medical attendance for more than nine days.
Without such evidence, the offense is only slight physical injuries.28
1avvphi1

We still appreciate treachery as an aggravating circumstance, it being sufficiently alleged in the


Information and proved during trial.
The Information specified that "accused, armed with a sharpened bamboo stick, with intent to kill,
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and stab with the said weapon one DANILO SALVADOR CRUZ x x x."
Treachery exists when an offender commits any of the crimes against persons, employing means,
methods or forms which tend directly or especially to ensure its execution, without risk to the
offender, arising from the defense that the offended party might make. This definition sets out what
must be shown by evidence to conclude that treachery existed, namely: (1) the employment of such
means of execution as would give the person attacked no opportunity for self-defense or retaliation;
and (2) the deliberate and conscious adoption of the means of execution. To reiterate, the essence
of qualifying circumstance is the suddenness, surprise and the lack of expectation that the attack will
take place, thus, depriving the victim of any real opportunity for self-defense while ensuring the
commission of the crime without risk to the aggressor.29 Likewise, even when the victim was
forewarned of the danger to his person, treachery may still be appreciated since what is decisive is
that the execution of the attack made it impossible for the victim to defend himself or to retaliate. 30

Both the RTC and the Court of Appeals found that treachery was duly proven in this case, and we
sustain such finding. Cruz, the victim, was attacked so suddenly, unexpectedly, and without
provocation. It was two oclock in the morning of January 23, 2002, and Cruz, who was out buying
bread at Mendejas store, was unarmed. Cruz had his guard down and was totally unprepared for an
attack on his person. Villacorta suddenly appeared from nowhere, armed with a sharpened bamboo
stick, and without uttering a word, stabbed Cruz at the left side of his body, then swiftly ran away.
Villacortas treacherous mode of attack left Cruz with no opportunity at all to defend himself or
retaliate.
Article 266(1) of the Revised Penal Code 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 from labor from one to nine days, or shall require medical attendance during the
same period.
The penalty of arresto menor spans from one (1) day to thirty (30) days. 31 The Indeterminate
Sentence Law does not apply since said law excludes from its coverage cases where the penalty
imposed does not exceed one (1) year.32 With the aggravating circumstance of treachery, we can
sentence Villacorta with imprisonment anywhere within arresto menor in the maximum period, i.e.,
twenty-one (21) to thirty (30) days. Consequently, we impose upon Villacorta a straight sentence of
thirty (30) days of arresto menor; but given that Villacorta has been in jail since July 31, 2002 until
present time, already way beyond his imposed sentence, we order his immediate release.
Under paragraph (1), Article 2219 of the Civil Code, moral damages may be recovered in a criminal
offense resulting in physical injuries. Moral damages compensate for the mental anguish, serious
anxiety, and moral shock suffered by the victim and his family as being a proximate result of the
wrongful act. An award requires no proof of pecuniary loss. Pursuant to previous jurisprudence, an
award of Five Thousand Pesos (P5,000.00) moral damages is appropriate for less serious, as well
as slight physical injuries.33
WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No.
02550, affirming the Decision dated September 22, 2006 of the Regional Trial Court, Branch 170, of
Malabon, in Criminal Case No. 27039-MN, is REVERSED and SET ASIDE. A new judgment is
entered finding Villacorta GUILTY beyond reasonable doubt of the crime of slight physical injuries, as
defined and punished by Article 266 of the Revised Penal Code, and sentenced to suffer the penalty
of thirty (30) days arresto menor. Considering that Villacorta has been incarcerated well beyond the
period of the penalty herein imposed, the Director of the Bureau of Prisons is ordered to cause
Villacortas immediate release, unless Villacorta is being lawfully held for another cause, and to
inform this Court, within five (5) days from receipt of this Decision, of the compliance with such order.
Villacorta is ordered to pay the heirs of the late Danilo Cruz moral damages in the sum of Five
Thousand Pesos (P5,000.00).
G.R. No. 205228

July 15, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee,


vs.

ROLLY ADRIANO y SAMSON, LEAN ADRIANO @ DENDEN, ABBA SANTIAGO y ADRIANO,


JOHN DOE AND PETER DOE, Accused,
ROLLY ADRIANO y SAMSON, Accused-Appellant.
DECISION
PEREZ, J.:
This is an appeal of the Decision of the Court of Appeals dated 30 May 2011 in CA-G.R. CR-HC No.
04028, which affirmed the Decision of the Regional Trial Court dated 7 April 2009, convicting
accused-appellant Rolly Adriano y Santos (Adriano) for the crime of Homicide (Crim. Case No.
13159-07) for the killing of Ofelia Bulanan (Bulanan) and for the crime of Murder (Crim. Case No.
13160-07) for the killing of Danilo Cabiedes (Cabiedes) in "People of the Philippines v. Rolly Adriano
y Sales."
1

Adriano was charged with two (2) counts of Murder. The two (2) sets of Information read:
Crim. Case No. 13159-07
On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in Malapit, San Isidro, Nueva
Ecija, within the jurisdiction of this Honorable Court, the above-named accused, conniving together,
with intent to kill, treachery and abuse of superior strength, willfully shot several times with assorted
firearms Ofelia Bulanan, hitting her on the different parts of her body, resulting in her death to the
damage of her heirs.
3

Crim. Case No. 13160-07


On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in Malapit, San Isidro, Nueva
Ecija, within the jurisdiction of this Honorable Court, the above-named accused, conniving together,
with intent to kill, treachery and abuse of superior strength, willfully shot several times with assorted
firearms Danilo Cabiedes, hitting him on the different parts of his body, resulting in his death to the
damage of his heirs.
4

Version of the Prosecution:


On 13 March 2007, at around 8:00 a.m., Police Officer 1 Matthew Garabiles (POI Garabiles) and
P02 Alejandro Santos (P02 Santos), in civilian clothes, were on their way to Camp Olivas,
Pampanga, riding a motorcycle along Olongapo-Gapan National Road.
5

While they were at Barangay Malapit San Isidro, Nueva Ecija, a speeding blue Toyota Corolla
(Corolla) with plate no. WHK 635, heading towards the same direction, overtook them and the car in
front of them, a maroon Honda CRV (CRY) with plate no. CTL 957.
6

When the Corolla reached alongside the CRV, the passenger on the front seat of the Corolla shot
the CRV and caused the CRV to swerve and fall in the canal in the road embankment. Four (4)
armed men then suddenly alighted the Corolla and started shooting at the driver of the CRV, who
was later identified as Cabiedes. During the shooting, a bystander, Bulanan, who was standing near
the road embankment, was hit by a stray bullet. The four armed men hurried back to the Corolla and

immediately left the crime scene. PO 1 Garabiles and P02 Santos followed the Corolla but lost track
of the latter.
7

Later, both Cabiedes and Bulanan died from fatal gunshot wounds: Cabiedes was pronounced dead
on arrival (DOA) at the Good Samaritan General Hospital due to three (3) gunshot wounds on the
left side of his chest while Bulanan died on the spot after being shot in the head.
During the investigation, the police learned that the Corolla was registered under the name of
Antonio V. Rivera (Rivera). Upon inquiry, Rivera admitted that he is the owner of the Corolla but
clarified that the Corolla is one of the several cars he owns in his car rental business, which he
leased to Adriano. Later that day, Adriano arrived at Rivera's shop with the Corolla, where he was
identified by P02 Santos and PO 1 Garabiles as one of the four assailants who alighted from the
passenger's seat beside the driver of the Corolla and shot Cabiedes. He was immediately arrested
and brought to the Provincial Special Operations Group (PSOG) headquarters in Cabanatuan City.

In examining the crime scene, the Nueva Ecija Provincial Crime Laboratory Office recovered one (1)
deformed fired bullet from a .45 caliber firearm and five (5) cartridges from a .45 caliber firearm.
9

Version of the Defense


Adriano testified that on 13 March 2007, at about 6:00 a.m., at the time of the incident, he was at his
house in Dolores, Magalang, Pampanga, washing the clothes of his child. After doing the laundry, he
took his motorcycle to a repair shop and left it there.
10

At about 8:00 a.m., Adriano went to the house of his friend, Ruben Mallari (Mallari), to ask for a
lighter spring needed to repair his motorcycle. After having coffee in Mallari' s house, Adriano went
home and brought his child to his mother. On his way to his mother's house, he met his brother-inlaw, Felix Aguilar Sunga (Sunga). After leaving his child at his mother's house, Adriano went to the
cockpit arena to watch cockfights, where he saw his friend, Danilo Dizon (Dizon). After the fights, he
left the cockpit at about 2:00 p.m. and went home and took a rest.
11

After resting, Adriano picked-up his motorcycle and proceeded to a store and stayed there. At
around 5 :00 p.m., he went back home. After a while, he received a call from a certain Boyet Garcia
(Garcia), who borrowed the Corolla from him, which he rented from Rivera.
12

At 8:00 p.m., he met with Garcia to get the Corolla back. After dropping Garcia off, Adriano went to
Rivera to return the Corolla, where he was arrested by police officers, thrown inside the Corolla's
trunk, and brought to a place where he was tortured.
13

The other defense's witnesses, Lucita Tapnio (Tapnio), Mallari, Sunga, and Dizon corroborated
Adriano's testimony.
14

When arraigned, Adriano pleaded not guilty. The other accused, Lean Adriano alias "Denden," Abba
Santiago y Adriano, John Doe, and Peter Doe remained at large.
During trial, the prosecution presented eight (8) witnesses: (1) PO1 Garabiles, (2) P02 Santos, (3)
Police Senior Inspector Roger V. Sebastian, (4) SP02 Alejandro Eduardo, (5) P02 Jay Cabrera, (6)
P03 Antonio dela Cruz, (7) Adelaida Cabiedes, widow of Cabiedes, and (8) Ricky Flores.

On the other hand, the defense presented Adriano, Tapnio, Sunga, Mallari, and Dizon as witnesses.
Ruling of the Lower Courts
After trial, the RTC convicted Adriano. The RTC rejected Adriano's defense of alibi on the ground
that it was not supported by clear and convincing evidence. According to the RTC, Adriano's alibi
cannot prevail over the testimonies of credible witnesses, who positively identified Adriano as one of
the perpetrators of the crime. Also, contrary to the allegations of the defense, the RTC gave full
credence to the testimony of prosecution witnesses, POI Garabiles and P02 Santos. The RTC
determined that the defense failed to show proof that will show or indicate that PO1 Garabiles and
P02 Santos were impelled by improper motives to testify against Adriano. The RTC found as proven
the assessment of damages against the accused. Thus did the RTC order Adriano to pay the heirs of
Cabiedes the amount of P222,482.00 based on the following: (1) One Hundred Thousand Pesos
(Pl00,000.00) as funeral expenses; (2) Sixty Thousand Pesos (P60,000.00) as expenses for the food
served during the burial; (3) Twelve Thousand Four Hundred Eighty Two Pesos (1!12,482.00) as
groceries used and served during the wake; and Sixty Thousand Pesos (P60,000.00) for the parts
and service repair of the CRV.
15

The dispositive portion of the R TC Decision dated 7 April 2009 reads:


WHEREFORE, finding accused ROLLY ADRIANO guilty beyond reasonable doubt of Murder, as
charged, for the death of Danilo Cabiedes, there being no aggravating or mitigating circumstance
that attended the commission of the crime, he is hereby sentenced to suffer the penalty of reclusion
perpetua. Accused Rolly Adriano is also ordered to indemnify the heirs of Danilo Cabiedes in the
amount of Php 50,000.00 and to pay the sum of Php 222,482.00 as actual damages.
And finding ROLLY ADRIANO also guilty beyond reasonable doubt of Homicide, as charged, for the
death of Ofelia Bulanan, likewise, there being no aggravating or mitigating circumstance that
attended the commission of the offense, he is further sentenced to suffer an indeterminate penalty of
imprisonment from Eight (8) years and One (1) day of prision mayor medium, as minimum, to
Seventeen (17) years and Four (4) months of reclusion temporal medium, as maximum, and to
indemnify the heirs of Ofelia Bulanan in the amount of Php 50,000.00.
16

On appeal to the Court of Appeals, Adriano alleged that the R TC erred when it failed to appreciate
his defense of alibi, as well as the testimonies of the other defense's witnesses. Adriano contended
that the RTC erred when it gave credence to the testimony of the prosecution witnesses which are
inconsistent and contradictory. In detail, Adriano referred to the following particulars: 1) whether the
culprits started shooting when the victim's vehicle was still in motion; 2) which side of the vehicle did
the shooters alight from; 3) the identity of the culprit who triggered the fatal shot; 4) whether the trip
of PO1 Garabiles and P02 Santos going to Camp Olivas, Pampanga was official business; 5) the
precise distance of the assailants' vehicle from that of the two (2) eyewitnesses; and 6) the precise
minutes of the shooting incident.
The Court of Appeals rejected Adriano's attempt to becloud the testimony of the prosecution
witnesses. According to the Court of Appeals, the prosecution witnesses' positive identification of
Adriano as one of the perpetrators of the crime cannot be overcome by minor inconsistencies in their
testimony. The Court of Appeals ruled that these trivial differences in fact constitute signs of veracity.

On the defense of alibi, the Court of Appeals affirmed the ruling of the R TC that Adriano's claim that
he was in Dolores, Magalang, Pampanga at the time of the incident does not convince because it
was not impossible for Adriano to be physically present at the crime scene, in Barangay Malapit, San
Isidro, Nueva Ecija, which can be reached by car in less than an hour. The dispositive portion of the
Court of Appeals Decision reads:
17

WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court of Gapan City,
Nueva Ecija, Br. 36, in Crim. Case Nos. 13159-07 and 13160-07 is AFFIRMED subject to the
Modification that the award of Fifty Thousand Pesos (Php50,000.00) as civil indemnity to the heirs of
Danilo Cabiedes is INCREASED to Seventy-Five Thousand Pesos (Php75,000.00). In addition, the
Accused-Appellant is ORDERED to pay the heirs of Danilo Cabiedes the amount of Seventy-Five
Thousand Pesos (Php75,000.00) as moral damages; and the heirs of Ofelia Bulanan the amount of
Fifty Thousand Pesos (Php50,000.00) as moral damages.
SO ORDERED.

18

Our Ruling
In cases of murder, the prosecution must establish the presence of the following elements:
1. That a person was killed.
2. That the accused killed him.
3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.
4. The killing is not parricide or infanticide.
In the case at bar, the prosecution has established the concurrence of the elements of murder: (1)
the fact of death of Cabiedes and Bulanan; (2) the positive identification of Adriano as one of
perpetrators of the crime; and (3) the attendance of treachery as a qualifying aggravating
circumstance and use of firearms and abuse of superior strength as generic aggravating
circumstances.
Death of Cabiedes
The present case is a case of murder by ambush. In ambush, the crime is carried out to ensure that
the victim is killed and at the same time, to eliminate any risk from any possible defenses or
retaliation from the victim ambush exemplifies the nature of treachery.
19

Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines treachery as the direct
employment of means, methods, or forms in the execution of the crime against persons which tend
directly and specially to insure its execution, without risk to the offender arising from the defense
which the offended party might make. In order for treachery to be properly appreciated, two
elements must be present: (1) at the time of the attack, the victim was not in a position to defend
himself; and (2) the accused consciously and deliberately adopted the particular means, methods or
forms of attack employed by him. The "essence of treachery is the sudden and unexpected attack
20

by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and
thereby ensuring its commission without risk of himself."
21

Clearly, treachery is present in the case at bar as the victims were indeed defenseless at the time of
the attack. Adriano, together with the other accused, ambushed Cabiedes by following the
unsuspecting victim along the national highway and by surprise, fired multiple shots at Cabiedes and
then immediately fled the crime scene, causing Cabiedes to die of multiple gunshot wounds. When
the Corolla swerved into the CRV's lane, Cabiedes was forced to swiftly turn to the right and on to
the road embankment, finally falling into the canal where his CRY was trapped, precluding all
possible means of defense. There is no other logical conclusion, but that the orchestrated ambush
committed by Adriano, together with his co-accused, who are still on the loose, was in conspiracy
with each other to ensure the death of Cabiedes and their safety. The means of execution employed
was deliberately and consciously adopted by Adriano so as to give Cabiedes no opportunity to
defend himself or to retaliate.
22

All these circumstances indicate that the orchestrated crime was committed with the presence of the
aggravating circumstances of treachery, which absorbs the aggravating circumstance of abuse of
superior strength, and use of firearms. Indeed, Cabiedes had no way of escaping or defending
himself.
Death of Bulanan
We refer back to the settled facts of the case. Bulanan, who was merely a bystander, was killed by a
stray bullet. He was at the wrong place at the wrong time.
Stray bullets, obviously, kill indiscriminately and often without warning, precluding the unknowing
victim from repelling the attack or defending himself. At the outset, Adriano had no intention to kill
Bulanan, much less, employ any particular means of attack. Logically, Bulanan's death was random
and unintentional and the method used to kill her, as she was killed by a stray a bullet, was, by no
means, deliberate. Nonetheless, Adriano is guilty of the death of Bulanan under Article 4 of the
Revised Penal Code, pursuant to the doctrine of aberratio ictus, which imposes criminal liability for
the acts committed in violation of law and for all the natural and logical consequences resulting
therefrom. While it may not have been Adriano's intention to shoot Bulanan, this fact will not
exculpate him. Bulanan' s death caused by the bullet fired by Adriano was the natural and direct
consequence of Adriano's felonious deadly assault against Cabiedes.
23

As we already held in People v. Herrera citing People v. Hilario, "[t]he fact that accused killed a
person other than their intended victim is of no moment." Evidently, Adriano's original intent was to
kill Cabiedes. However, during the commission of the crime of murder, a stray bullet hit and killed
Bulanan. Adriano is responsible for the consequences of his act of shooting Cabiedes. This is the
import of Article 4 of the Revised Penal Code. As held in People v. Herrera citing People v. Ural:
24

25

Criminal liability is incurred by any person committing a felony although the wrongful act be different
from that which is intended. One who commits an intentional felony is responsible for all the
consequences which may naturally or logically result therefrom, whether foreseen or intended or not.
The rationale of the rule is found in the doctrine, 'el que es causa de la causa es causa del mal
causado ', or he who is the cause of the cause is the cause of the evil caused.
26

As regards the crime(s) committed, we reiterate our ruling in People v. Nelmida. In the aforesaid
case, we ruled that accused-appellants should be convicted not of a complex crime but of separate
crimes of two counts of murder and seven counts of attempted murder as the killing and wounding of
the victims were not the result of a single act but of several acts. The doctrine in Nelmida here is apt
and applicable.
27

28

In Nelmida, we distinguished the two kinds of complex crime: compound crime, when a single act
constitutes two or more grave or less grave felonies, and complex crime proper, when an offense is
a necessary means for committing the other. Moreover, we also made a distinction that "when
various victims expire from separate shots, such acts constitute separate and distinct crimes," not a
complex crime.
29

As borne by the records, the Nueva Ecija Provincial Crime Laboratory Office recovered six (6)
cartridges of bullets from a .45 caliber firearm. This does not indicate discharge by a single burst.
Rather, separate shots are evidenced. One or more of which, though fired to kill Cabiedes, killed
Bulanan instead. There is thus no complex crime. The felonious acts resulted in two separate and
distinct crimes.
Finally, we ask, may treachery be appreciated in aberratio ictus?
Although Bulanan's death was by no means deliberate, we shall adhere to the prevailing
jurisprudence pronounced in People v. Flora, where the Court ruled that treachery may be
appreciated in aberratio ictus. In Flora, the accused was convicted of two separate counts of murder:
for the killing of two victims, Emerita, the intended victim, and Ireneo, the victim killed by a stray
bullet. The Court, due to the presence of the aggravating circumstance of treachery, qualified both
killings to murder. The material facts in Flora are similar in the case at bar. Thus, we follow the Flora
doctrine.
30

Also, contrary to the defense's allegation that Bulanan' s death was not established, a perusal of the
records would reveal that Bulanan's fact of death was duly established as the prosecution offered in
evidence Bulanan's death certificate.
31

On the alibi as defense, time and again, we have ruled alibis like denials, are inherently weak and
unreliable because they can easily be fabricated. For alibi to prosper, the accused must
convincingly prove that he was somewhere else at the time when the crime was committed and that
it was physically impossible for him to be at the crime scene. In the case at bar, Adriano claimed he
was in Dolores, Magalang, Pampanga at the time of incident. Adriano's claim failed to persuade. As
admitted, Dolores, Magalang, Pampanga was only less than an hour away from the crime scene,
Barangay Malapit, San Isidro, Nueva Ecija. Hence, it was not physically impossible for Adriano to be
at the crime scene at the time of the incident.
32

33

It is likewise uniform holding that denial and alibi will not prevail when corroborated not by credible
witnesses but by the accused's relatives and friends. Therefore, the defense's evidence which is
composed of Adriano's relatives and friends cannot prevail over the prosecution's positive
identification of Adriano as one of the perpetrators of the crime.
1wphi1

The penalty for murder under Article 248 of the Revised Penal Code is reclusion perpetua to death.
In the case at bar, as the circumstance of abuse of superior strength concurs with treachery, the
former is absorbed in the latter. There being no aggravating or mitigating circumstance present, the

lower penalty should be imposed, which is reclusion perpetua, in accordance with Article 63,
paragraph 2 of the Revised Penal Code.
To recover actual or compensatory damages, basic is the rule that the claimant must establish with a
reasonable degree of certainty, the actual amount of loss by means of competent proof or the best
evidence obtainable. Documentary evidence support the award of actual damages in this case. The
RTC computed the amount of actual damages as P222,482.00. However, a perusal of the records
reveals that the amount of award of actual damages should be P232,482.00 as duly supported by
official receipts. Therefore, we hereby increase the award of actual damages from P222,482.00
to P232,482.00.
34

35

WHEREFORE, the appeal is DISMISSED. The assailed Decision of the Court of Appeals in CA-G.R.
CR-HC No. 04028 is AFFIRMED with MODIFICATIONS. Appellant-appellant ROLL Y ADRIANO y
SAMSON is found GUILTY beyond reasonable doubt of MURDER (Criminal Case No. 13160-07) for
the killing of DANILO CABIEDES and is hereby sentenced to suffer the penalty of reclusion
perpetua. Accused-appellant ROLLY ADRIANO y SAMSON is ordered to pay the heirs of DANILO
CABIEDES the amount of Seventy Five Thousand Pesos (P75,000.00) as civil indemnity, Seventy
Five Thousand Pesos (P75,000.00) as moral damages, Thirty Thousand Pesos (P30,000.00) as
exemplary damages, and Two Hundred Thirty Two Thousand Four Hundred Eighty Two Pesos
{P232,482.00) as actual damages.
Accused-appellant ROLLY ADRIANO y SAMSON is also found guilty beyond reasonable doubt of
the crime of MURDER (Criminal Case No. 13159-07) for the killing of OFELIA BULANAN and is
hereby sentenced to suffer the penalty of reclusion perpetua. Accused-appellant ROLLY ADRIANO y
SAMSON is ordered to pay the heirs of OFELIA BULANAN in the amount of the amount of Seventy
Five Thousand Pesos (P75,000.00) as civil indemnity, Seventy Five Thousand Pesos (P75,000.00)
as moral damages, Thirty Thousand Pesos (P30,000.00) as exemplary damages, and Twenty Five
Thousand Pesos (P25,000.00) as temperate damages in lieu of actual damages.
All monetary awards shall earn interest at the rate of 6o/o per annum from the date of finality until
fully paid.
G.R. No. 177218

October 3, 2011

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
NOEL T. SALES, Appellant.
DECISION
DEL CASTILLO, J.:
A father ought to discipline his children for committing a misdeed. However, he may not employ
sadistic beatings and inflict fatal injuries under the guise of disciplining them.
This appeal seeks the reversal of the December 4, 2006 Decision 1 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 01627 that affirmed the August 3, 2005 Joint Decision 2 of the Regional Trial
Court (RTC), Branch 63 of Calabanga, Camarines Sur in Criminal Case Nos. RTC03-782 and

RTC03-789, convicting appellant Noel T. Sales (appellant) of the crimes of parricide and slight
physical injuries, respectively. The Information3 for parricide contained the following allegations:
That on or about the 20th day of September, 2002, at around or past 8:00 oclock in the evening at
Brgy. San Vicente, Tinambac, Camarines Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with evident premeditation and [in] a fit of anger, did
then and there willfully, unlawfully and feloniously hit [several] times, the different parts of the body of
his legitimate eldest son, Noemar Sales, a 9-year old minor, with a [piece of] wood, measuring more
or less one meter in length and one [and] a half inches in diameter, [thereby] inflicting upon the latter
mortal wounds, which cause[d] the death of the said victim, to the damage and prejudice of the
latters heirs in such amount as may be proven in court.
ACTS CONTRARY TO LAW.4
On the other hand, the Information5 in Criminal Case No. RTC03-789 alleges that appellant inflicted
slight physical injuries in the following manner:
That on or about the 20th day of September, 2002, at around or past 8:00 oclock in the evening, at
Brgy. San Vicente, Tinambac, Camarines Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named [accused] assault[ed] and hit with a piece of wood, one Noel
Sales, Jr., an 8-year old minor, his second legitimate son, thereby inflicting upon him physical injuries
which have required medical attendance for a period of five (5) days to the damage and prejudice of
the victims heirs in such amount as may be proven in court.
ACTS CONTRARY TO LAW.6
When arraigned on April 11, 2003 and July 1, 2003, appellant pleaded not guilty for the charges of
parricide7 and slight physical injuries8 respectively. The cases were then consolidated upon
manifestation of the prosecution which was not objected to by the defense. 9 During the pre-trial
conference, the parties agreed to stipulate that appellant is the father of the victims, Noemar Sales
(Noemar) and Noel Sales, Jr. (Junior); that at the time of the incident, appellants family was living in
the conjugal home located in Barangay San Vicente, Tinambac, Camarines Sur; and, that appellant
voluntarily surrendered to the police.10
Thereafter, trial ensued.
The Version of the Prosecution
On September 19, 2002, brothers Noemar and Junior, then nine and eight years old, respectively,
left their home to attend the fluvial procession of Our Lady of Peafrancia without the permission of
their parents. They did not return home that night. When their mother, Maria Litan Sales (Maria),
looked for them the next day, she found them in the nearby Barangay of Magsaysay. Afraid of their
fathers rage, Noemar and Junior initially refused to return home but their mother prevailed upon
them. When the two kids reached home at around 8 oclock in the evening of September 20, 2002, a
furious appellant confronted them. Appellant then whipped them with a stick which was later broken
so that he brought his kids outside their house. With Noemars and Juniors hands and feet tied to a
coconut tree, appellant continued beating them with a thick piece of wood. During the beating Maria
stayed inside the house and did not do anything as she feared for her life.
When the beating finally stopped, the three walked back to the house with appellant assisting
Noemar as the latter was staggering, while Junior fearfully followed. Maria noticed a crack in

Noemars head and injuries in his legs. She also saw injuries in the right portion of the head, the left
cheek, and legs of Junior. Shortly thereafter, Noemar collapsed and lost consciousness. Maria tried
to revive him and when Noemar remained motionless despite her efforts, she told appellant that their
son was already dead. However, appellant refused to believe her. Maria then told appellant to call a
quack doctor. He left and returned with one, who told them that they have to bring Noemar to a
hospital. Appellant thus proceeded to take the unconscious Noemar to the junction and waited for a
vehicle to take them to a hospital. As there was no vehicle and because another quack doctor they
met at the junction told them that Noemar is already dead, appellant brought his son back to their
house.
Noemars wake lasted only for a night and he was immediately buried the following day. His body
was never examined by a doctor.
The Version of the Defense
Prior to the incident, Noemar and Junior had already left their residence on three separate occasions
without the permission of their parents. Each time, appellant merely scolded them and told them not
to repeat the misdeed since something untoward might happen to them. During those times, Noemar
and Junior were never physically harmed by their father.
However, Noemar and Junior again left their home without their parents permission on September
16, 2002 and failed to return for several days. Worse, appellant received information that his sons
stole a pedicab. As they are broke, appellant had to borrow money so that his wife could search for
Noemar and Junior. When his sons finally arrived home at 8 oclock in the evening of September 20,
2002, appellant scolded and hit them with a piece of wood as thick as his index finger. He hit
Noemar and Junior simultaneously since they were side by side. After whipping his sons in their
buttocks three times, he noticed that Noemar was chilling and frothing. When Noemar lost
consciousness, appellant decided to bring him to a hospital in Naga City by waiting for a vehicle at
the crossroad which was seven kilometers away from their house.
Appellant held Noemar while on their way to the crossroad and observed his difficulty in breathing.
The pupils of Noemars eyes were also moving up and down. Appellant heard him say that he
wanted to sleep and saw him pointing to his chest in pain. However, they waited in vain since a
vehicle never came. It was then that Noemar died. Appellant thus decided to just bring Noemar back
to their house.
Appellant denied that his son died from his beating since no parent could kill his or her child. He
claimed that Noemar died as a result of difficulty in breathing. In fact, he never complained of the
whipping done to him. Besides, appellant recalled that Noemar was brought to a hospital more than
a year before September 2002 and diagnosed with having a weak heart.
On the other hand, Maria testified that Noemar suffered from epilepsy. Whenever he suffers from
epileptic seizures, Noemar froths and passes out. But he would regain consciousness after 15
minutes. His seizures normally occur whenever he gets hungry or when scolded.
The death of Noemar was reported to the police by the barangay captain. 11 Thereafter, appellant
surrendered voluntarily.12
Ruling of the Regional Trial Court

In a Joint Decision,13 the trial court held that the evidence presented by the prosecution was sufficient
to prove that appellant was guilty of committing the crimes of parricide and slight physical injuries in
the manner described in the Informations. In the crime of parricide, the trial court did not consider the
aggravating circumstance of evident premeditation against appellant since there is no proof that he
planned to kill Noemar. But the trial court appreciated in his favor the mitigating circumstances of
voluntary surrender and lack of intent to commit so grave a wrong. The dispositive portion of said
Joint Decision reads:
WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of Noel Sales,
beyond reasonable doubt, he is found guilty of parricide in Crim. Case No. RTC03-782 and
sentenced to suffer the penalty of reclusion perpetua. He is likewise ordered to pay the heirs of
Noemar Sales, the amount of P50,000.00 as civil indemnity; P50,000.00 as moral
damages; P25,000,00 as exemplary damages and to pay the costs.
Furthermore, accused Noel Sales is also found guilty beyond reasonable doubt of the crime of slight
physical injuries in Crim. Case No. RTC03-789 and sentenced to suffer the penalty of twenty (20)
days of Arresto Menor in its medium period.
Accused Noel Sales is likewise meted the accessory penalties as provided under the Revised Penal
Code. Considering that herein accused has undergone preventive imprisonment, he shall be
credited in the service of his sentence with the time he has undergone preventive imprisonment in
accordance with and subject to the conditions provided for in Article 29 of the Revised Penal Code.
SO ORDERED.14
Appellant filed a Notice of Appeal15 which was given due course in an Order16 dated September 21,
2005.
Ruling of the Court of Appeals
However, the appellate court denied the appeal and affirmed the ruling of the trial court. The
dispositive portion of its Decision17 reads as follows:
WHEREFORE, premises considered, the appeal is DENIED. The assailed decision dated August 3,
2005 in Criminal Case Nos. RTC03-782 and RTC03-789 for Parricide and Slight Physical Injuries,
respectively, isAFFIRMED.
Pursuant to Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, appellant may
appeal this case to the Supreme Court via a Notice of Appeal filed before this Court.
SO ORDERED.18
Issues
Hence, appellant is now before this Court with the following two-fold issues:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED.

II
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT TO THE TESTIMONIES OF THE
DEFENSE WITNESSES.19
Our Ruling
The appeal is without merit.
The Charge of Parricide
Appellant admits beating his sons on September 20, 2002 as a disciplinary measure, but denies
battering Noemar to death. He believes that no father could kill his own son. According to him,
Noemar had a weak heart that resulted in attacks consisting of loss of consciousness and froth in his
mouth. He claims that Noemar was conscious as they traveled to the junction where they would take
a vehicle in going to a hospital. However, Noemar had difficulty in breathing and complained of chest
pain. He contends that it was at this moment that Noemar died, not during his whipping. To
substantiate his claim, appellant presented his wife, Maria, who testified that Noemar indeed
suffered seizures, but this was due to epilepsy.
The contentions of appellant fail to persuade. The imposition of parental discipline on children of
tender years must always be with the view of correcting their erroneous behavior. A parent or
guardian must exercise restraint and caution in administering the proper punishment. They must not
exceed the parameters of their parental duty to discipline their minor children. It is incumbent upon
them to remain rational and refrain from being motivated by anger in enforcing the intended
punishment. A deviation will undoubtedly result in sadism.
Prior to whipping his sons, appellant was already furious with them because they left the family
dwelling without permission and that was already preceded by three other similar incidents. This was
further aggravated by a report that his sons stole a pedicab thereby putting him in disgrace.
Moreover, they have no money so much so that he still had to borrow so that his wife could look for
the children and bring them home. From these, it is therefore clear that appellant was motivated not
by an honest desire to discipline the children for their misdeeds but by an evil intent of venting his
anger. This can reasonably be concluded from the injuries of Noemar in his head, face and legs. It
was only when Noemars body slipped from the coconut tree to which he was tied and lost
consciousness that appellant stopped the beating. Had not Noemar lost consciousness, appellant
would most likely not have ceased from his sadistic act. His subsequent attempt to seek medical
attention for Noemar as an act of repentance was nevertheless too late to save the childs life. It
bears stressing that a decent and responsible parent would never subject a minor child to sadistic
punishment in the guise of discipline.
Appellant attempts to evade criminal culpability by arguing that he merely intended to discipline
Noemar and not to kill him. However, the relevant portion of Article 4 of the Revised Penal Code
states:
Art. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.
xxxx

In order that a person may be criminally liable for a felony different from that which he intended to
commit, it is indispensible (a) that a felony was committed and (b) that the wrong done to the
aggrieved person be the direct consequence of the crime committed by the perpetrator.20 Here, there
is no doubt appellant in beating his son Noemar and inflicting upon him physical injuries, committed
a felony. As a direct consequence of the beating suffered by the child, he expired. Appellants
criminal liability for the death of his son, Noemar, is thus clear.
Appellants claim that it was Noemars heart ailment that caused his death deserves no merit. This
declaration is self-serving and uncorroborated since it is not substantiated by evidence. While Dr.
Salvador Betito, a Municipal Health Officer of Tinambac, Camarines Sur issued a death certificate
indicating that Noemar died due to cardio-pulmonary arrest, the same is not sufficient to prove that
his death was due mainly to his poor health. It is worth emphasizing that Noemars cadaver was
never examined. Also, even if appellant presented his wife, Maria, to lend credence to his
contention, the latters testimony did not help as same was even in conflict with his testimony.
Appellant testified that Noemar suffered from a weak heart which resulted in his death while Maria
declared that Noemar was suffering from epilepsy. Interestingly, Marias testimony was also
unsubstantiated by evidence.
Moreover, as will be discussed below, all the elements of the crime of parricide are present in this
case.
All the Elements of Parricide are present in the case at bench.
We find no error in the ruling of the trial court, as affirmed by the appellate court, that appellant
committed the crime of parricide.
Article 246 of the Revised Penal Code defines parricide as follows:
Art. 246. Parricide. Any person who shall kill his father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and
shall be punished by the penalty of reclusion perpetua to death.
"Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the
deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other
ascendant or other descendant, or the legitimate spouse of accused." 21
In the case at bench, there is overwhelming evidence to prove the first element, that is, a person
was killed. Maria testified that her son Noemar did not regain consciousness after the severe beating
he suffered from the hands of his father. Thereafter, a quack doctor declared Noemar dead.
Afterwards, as testified to by Maria, they held a wake for Noemar the next day and then buried him
the day after. Noemars Death Certificate22 was also presented in evidence.
There is likewise no doubt as to the existence of the second element that the appellant killed the
deceased. Same is sufficiently established by the positive testimonies of Maria and Junior. Maria
testified that on September 20, 2002, Noemar and his younger brother, Junior, were whipped by
appellant, their father, inside their house. The whipping continued even outside the house but this
time, the brothers were tied side by side to a coconut tree while appellant delivered the lashes
indiscriminately. For his part, Junior testified that Noemar, while tied to a tree, was beaten by their
father in the head. Because the savagery of the attack was too much for Noemars frail body to
endure, he lost consciousness and died from his injuries immediately after the incident.

As to the third element, appellant himself admitted that the deceased is his child. While Noemars
birth certificate was not presented, oral evidence of filial relationship may be considered. 23 As earlier
stated, appellant stipulated to the fact that he is the father of Noemar during the pre-trial conference
and likewise made the same declaration while under oath. 24 Maria also testified that Noemar and
Junior are her sons with appellant, her husband. These testimonies are sufficient to establish the
relationship between appellant and Noemar.
Clearly, all the elements of the crime of parricide are obtaining in this case.
There is Mitigating Circumstance of Voluntary Surrender but not Lack of Intention to Commit so
Grave a Wrong
The trial court correctly appreciated the mitigating circumstance of voluntary surrender in favor of
appellant since the evidence shows that he went to the police station a day after the barangay
captain reported the death of Noemar. The presentation by appellant of himself to the police officer
on duty in a spontaneous manner is a manifestation of his intent "to save the authorities the trouble
and expense that may be incurred for his search and capture"25 which is the essence of voluntary
surrender.
However, there was error in appreciating the mitigating circumstance of lack of intention to commit
so grave a wrong. Appellant adopted means to ensure the success of the savage battering of his
sons. He tied their wrists to a coconut tree to prevent their escape while they were battered with a
stick to inflict as much pain as possible. Noemar suffered injuries in his face, head and legs that
immediately caused his death. "The mitigating circumstance of lack of intent to commit so grave a
wrong as that actually perpetrated cannot be appreciated where the acts employed by the accused
were reasonably sufficient to produce and did actually produce the death of the victim." 26
The Award of Damages and Penalty for Parricide
We find proper the trial courts award to the heirs of Noemar of the sums of P50,000.00 as civil
indemnity, andP50,000.00 as moral damages. However, the award of exemplary damages
of P25,000.00 should be increased toP30,000.00 in accordance with prevailing jurisprudence.27 "In
addition, and in conformity with current policy, we also impose on all the monetary awards for
damages an interest at the legal rate of 6% from the date of finality of this Decision until fully paid." 28
As regards the penalty, parricide is punishable by reclusion perpetua to death. The trial court
imposed the penalty of reclusion perpetua when it considered the presence of the mitigating
circumstances of voluntary surrender and lack of intent to commit so grave a wrong. However, even
if we earlier ruled that the trial court erred in considering the mitigating circumstance of lack of intent
to commit so grave a wrong, we maintain the penalty imposed. This is because the exclusion of said
mitigating circumstance does not result to a different penalty since the presence of only one
mitigating circumstance, which is, voluntary surrender, with no aggravating circumstance, is sufficient
for the imposition of reclusion perpetua as the proper prison term. Article 63 of the Revised Penal
Code provides in part as follows:
Art. 63. Rules for the application of indivisible penalties. - x x x
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:
xxxx

3. When the commission of the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied.
xxxx
The crime of parricide is punishable by the indivisible penalties of reclusion perpetua to death. With
one mitigating circumstance, which is voluntary surrender, and no aggravating circumstance, the
imposition of the lesser penalty of reclusion perpetua and not the penalty of death on appellant was
thus proper.29
The Charge of Slight Physical Injuries
The victim himself, Junior testified that he, together with his brother Noemar, were beaten by their
father, herein appellant, while they were tied to a coconut tree. He recalled to have been hit on his
right eye and right leg and to have been examined by a physician thereafter.30 Maria corroborated
her sons testimony.31
Juniors testimony was likewise supported by Dr. Ursolino Primavera, Jr. (Dr. Primavera) of
Tinambac Community Hospital who examined him for physical injuries. He issued a Medical
Certificate for his findings and testified on the same. His findings were (1) muscular contusions with
hematoma on the right side of Juniors face just below the eye and on both legs, which could have
been caused by hitting said area with a hard object such as a wooden stick and, (2) abrasions of
brownish color circling both wrist with crust formation which could have been sustained by the
patient due to struggling while his hands were tied. When asked how long does he think the injuries
would heal, Dr. Primavera answered one to two weeks.32 But if applied with medication, the injuries
would heal in a week.33
We give full faith and credence to the categorical and positive testimony of Junior that he was
beaten by his father and that by reason thereof he sustained injuries. His testimony deserves
credence especially since the same is corroborated by the testimony of his mother, Maria, and
supported by medical examination. We thus find that the RTC correctly held appellant guilty of the
crime of slight physical injuries.
1awphil

Penalty for Slight Physical Injuries


We likewise affirm the penalty imposed by the RTC. Dr. Primavera testified that the injuries
sustained by Junior should heal in one week upon medication. Hence, the trial court correctly meted
upon appellant the penalty under paragraph 1, 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 attendance during the same
period.
xxxx

There being no mitigating or aggravating circumstance present in the commission of the crime, the
penalty shall be in its medium period. The RTC was thus correct in imposing upon appellant the
penalty of twenty (20) days ofarresto menor in its medium period.
WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C.
No. 01627 that affirmed the Joint Decision of the Regional Trial Court, Branch 63 of Calabanga,
Camarines Sur in Criminal Case Nos. RTC03-782 and RTC03-789, convicting Noel T. Sales of the
crimes of parricide and slight physical injuries is AFFIRMED with MODIFICATIONS that the award of
exemplary damages is increased to P30,000.00. In addition, an interest of 6% is imposed on all
monetary awards from date of finality of this Decision until fully paid.
SO ORDERED.

G.R. No. 103119 October 21, 1992


SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:


Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City,
finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino
Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and
asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and
Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that
he wanted Palangpangan to be killed because of a land dispute between them and that Mandaya
should accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and
Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena,
Misamis Occidental. At the instance of his companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It
turned out, however, that Palangpangan was in another City and her home was then occupied by
her son-in-law and his family. No one was in the room when the accused fired the shots. No one was
hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that
before the five men left the premises, they shouted: "We will kill you (the witness) and especially
Bernardina Palangpangan and we will come back if (sic) you were not injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed
by the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from
this Court a modification of the judgment by holding him liable only for an impossible
crime, citing Article 4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on account
of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his
companions riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible.
Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder.
Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent
pointed out that:
. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had
it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in
the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that the
result or end contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him criminally
liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by
the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which
were it not aimed at something quite impossible or carried out with means which prove inadequate,
would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to
punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or
property because: (1) the commission of the offense is inherently impossible of accomplishment: or
(2) the means employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible
of accomplishment is the focus of this petition. To be impossible under this clause, the act intended
by the offender must be by its nature one impossible of accomplishment. 11 There must be either
impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime.

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

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the
actor or beyond his control prevent the consummation of the intended crime. 16 One example is the
man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and
finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim
would be, although in reality, the victim was not present in said place and thus, the petitioner failed to
accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the
accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be.
It turned out, however, that the latter was in a different place. The accused failed to hit him and to
achieve his intent. The Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where
he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It
is well settled principle of criminal law in this country that where the criminal result of
an attempt is not accomplished simply because of an obstruction in the way of the
thing to be operated upon, and these facts are unknown to the aggressor at the time,
the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim
because the latter did not pass by the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that way;
and further, that he was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible for the crime to be
committed, either by outside interference or because of miscalculation as to a
supposed opportunity to commit the crime which fails to materialize; in short it has no
application to the case when the impossibility grows out of extraneous acts not within
the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there
was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his
criminal intent, no one can seriously doubt that the protection of the public requires
the punishment to be administered, equally whether in the unseen depths of the

pocket, etc., what was supposed to exist was really present or not. The community
suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as
a crime and what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the incipient act which the law
of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that
the latter was inside. However, at that moment, the victim was in another part of the house. The
court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this
Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon
these decisions to resolve the issue at hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes
and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal
Procedure is silent regarding this matter. What it provided for were attempts of the crimes
enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the
offense is merely a defense to an attempt charge. In this regard, commentators and the cases
generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime
could have been committed had the circumstances been as the defendant believed
them to be, it is no defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for
an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into
and out of prison. The law governing the matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to send a letter without the latter's
knowledge and consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court held the accused liable for
attempt but the appellate court reversed. It held unacceptable the contention of the state that
"elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model
Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view".
In disposing of this contention, the Court held that the federal statutes did not contain such provision,
and thus, following the principle of legality, no person could be criminally liable for an act which was
not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of legal impossibility until such time as
such legislative changes in the law take place, this court will not fashion a new nonstatutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that
the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for
any crime neither for an attempt not for an impossible crime. The only reason for this is that in

American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility
as a defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The
impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by
itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised
Penal Code makes no distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended
crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code,
such is sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence
of Palangpangan was a supervening cause independent of the actor's will, will render useless the
provision in Article 4, which makes a person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In
that case all circumstances which prevented the consummation of the offense will be treated as an
accident independent of the actor's will which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of
respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We
hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph
2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months
of arresto mayor, together with the accessory penalties provided by the law, and to pay the costs.
G.R. No. 162540

July 13, 2009

GEMMA T. JACINTO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the
reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December
16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution 2 dated
March 5, 2004 denying petitioner's motion for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline
Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the
crime of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein
represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid
establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and

without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated
July 14, 1997 in the sum of P10,000.00, representing payment made by customer Baby Aquino to
the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount
of P10,000.00.
CONTRARY TO LAW.3
The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the
events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner
Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount
of P10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc.,
and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land
Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime
in the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if
she could issue checks payable to the account of Mega Foam, instead of issuing the checks payable
to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call
from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The
reason for the call was to inform Capitle that the subject BDO check deposited in his account had
been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking
the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and relay the message through Valencia, because
the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and
former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to
ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the
cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle.
Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega
Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed
handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment for her
purchases from Mega Foam.4Baby Aquino further testified that, sometime in July 1997, petitioner
also called her on the phone to tell her that the BDO check bounced. 5 Verification from company
records showed that petitioner never remitted the subject check to Mega Foam. However, Baby
Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement
for the dishonored check.6
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his
bank account, but explained that the check came into his possession when some unknown woman
arrived at his house around the first week of July 1997 to have the check rediscounted. He parted
with his cash in exchange for the check without even bothering to inquire into the identity of the

woman or her address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didnt know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked
out an entrapment operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco
were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to
Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then
holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push
through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and
Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to
Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the P10,000.00 marked money previously given to her by
Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave P5,000.00 each to
Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had
been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent
powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and
Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two
and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented the following
scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but
claimed that she had stopped collecting payments from Baby Aquino for quite some time before her
resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to
her mothers house, where she was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the
Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in
their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca
asked them to wait in their jeep, which they parked outside the house of Baby Aquino, and was very
surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30,
1997. It was never part of her job to collect payments from customers. According to her, on the
morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could
accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so,
despite her admission during cross-examination that she did not know where Baby Aquino resided,
as she had never been to said house. They then met at the house of petitioner's mother, rode the
jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at
said place, Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes,
Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked,
"What is this?" Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its
Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y
Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable
doubt of the crime ofQUALIFIED THEFT and each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to
SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the
dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner
Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision
and Resolution of the CA. The issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in the information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt. 8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to constitute the elements of the
crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal
Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector for Mega
Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to gain this is presumed from
the act of unlawful taking and further shown by the fact that the check was deposited to the bank
account of petitioner's brother-in-law; (4) it was done without the owners consent petitioner hid the
fact that she had received the check payment from her employer's customer by not remitting the
check to the company; (5) it was accomplished without the use of violence or intimidation against
persons, nor of force upon things the check was voluntarily handed to petitioner by the customer,

as she was known to be a collector for the company; and (6) it was done with grave abuse of
confidence petitioner is admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the
personal property subject of the theft must have some value, as the intention of the accused
is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides
that the penalty to be imposed on the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same
was apparently without value, as it was subsequently dishonored. Thus, the question arises on
whether the crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the
accused, intending to kill a person, peppered the latters bedroom with bullets, but since the intended
victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible
crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised
Penal Code, because of the factual impossibility of producing the crime. Pertinent portions of said
provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
xxxx
2. By any person performing an act which would be an offense against persons or property, were it
not for theinherent impossibility of its accomplishment or on account of the employment of
inadequate to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the means
employed or the aims sought are impossible. - When the person intending to commit an offense has
already performed the acts for the execution of the same but nevertheless the crime was not
produced by reason of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are essentially inadequate to
produce the result desired by him, the court, having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense
against persons or property; (2) that the act was done with evil intent; and (3) that its
accomplishment was inherently impossible, or the means employed was either inadequate or
ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article
4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot produce an offense against persons or
property because: (1) the commission of the offense is inherently impossible of accomplishment; or
(2) the means employed is either (a) inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the offense is inherently impossible
of accomplishment is the focus of this petition. To be impossible under this clause, the act intended

by the offender must be by its nature one impossible of accomplishment. There must be either (1)
legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify
the act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the
actor or beyond his control prevent the consummation of the intended crime. x x x 11
In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a
man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets
nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In
this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a
crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking
the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for
the fact that the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being
unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced.
The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check
was eventually dishonored, and Mega Foam had received the cash to replace the value of said
dishonored check.
1avvphi1

The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she
thought was the cash replacement for the dishonored check, is of no moment. The Court held
in Valenzuela v. People12 that under the definition of theft in Article 308 of the Revised Penal Code,
"there is only one operative act of execution by the actor involved in theft the taking of personal
property of another." Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer
provided in the language of the law that theft is already "produced" upon the "tak[ing of] personal
property of another without the latters consent."
xxxx
x x x when is the crime of theft produced? There would be all but certain unanimity in the position
that theft is produced when there is deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or unable to freely dispose
of the property stolen since the deprivation from the owner alone has already ensued from such acts
of execution. x x x
xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same. x x x
x x x Unlawful taking, which is the deprivation of ones personal property, is the element which
produces the felony in its consummated stage. x x x 13
From the above discussion, there can be no question that as of the time that petitioner took
possession of the check meant for Mega Foam, she had performed all the acts to
consummate the crime of theft, had it not been impossible of accomplishment in this
case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the
dishonored check was no longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched
only after the check had been dishonored by the drawee bank. Since the crime of theft is not a
continuing offense, petitioner's act of receiving the cash replacement should not be considered as a
continuation of the theft. At most, the fact that petitioner was caught receiving the marked money
was merely corroborating evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash
by its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not
included or covered by the allegations in the Information, the Court cannot pronounce judgment on
the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals,
dated December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner
Gemma T. Jacinto is found GUILTYof an IMPOSSIBLE CRIME as defined and penalized in Articles
4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the
penalty of six (6) months of arrresto mayor, and to pay the costs.

G.R. Nos. 143468-71

January 24, 2003

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
FREDDIE LIZADA @ FREDIE LIZADA, accused-appellant.
CALLEJO, SR., J.:
This is an automatic review of the Decision1 of the Regional Trial Court of Manila, Branch 54, finding
accused-appellant Freddie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape
and meting on him the death penalty for each count.
I. The Charges
Accused-appellant2 was charged with four (4) counts of qualified rape under four separate
Informations. The accusatory portion of each of the four Informations reads:
"That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully and feloniously, by means of force, violence
and intimidation upon the person of one ANALIA ORILLOSA y AGOO, by then and there
embracing her, kissing and touching her private parts, thereafter removing her skirt and
panty, placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA y AGOO, against
her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with
lewd designs, did then and there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and

there embracing her, kissing and touching her private parts, thereafter removing her skirt and
panty, placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with
lewd designs, did then and there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and
there embracing her, kissing and touching her private parts, thereafter removing her skirt and
panty, placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about September 15, 1998, in the City of Manila, Philippines, the said accused,
with lewd designs, did then and there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and
there embracing her, kissing and touching her private parts, thereafter removing her skirt and
panty, placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law."3
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392
and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea
of not guilty to each of the charges.4 A joint trial then ensued.
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children,
namely: Analia, who was born on December 18, 1985; 6 Jepsy, who was 11 years old, and Rossel,
who was nine years old. However, the couple decided to part ways and live separately. Rose left
Bohol and settled in Manila with her young children. She worked as a waitress to make both ends
meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No.
1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a
waitress. She secured a loan, bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop
in her house. She sold Avon products from house to house to augment her income. Whenever she

was out of their house, Rossel and Analia took turns in tending the video shop and attending to
customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her,
removed her T-shirt and underwear. He then inserted his finger in her vagina. He removed his finger
and inserted his penis in her vagina. Momentarily, she felt a sticky substance coming out from his
penis. She also felt pain in her sex organ. Satiated, accused-appellant dismounted but threatened to
kill her if she divulged to anyone what he did to her. Accused-appellant then returned to his room.
The incident lasted less than one hour. Petrified by the threats on her life, Analia kept to herself what
happened to her.7
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on
top of her and held her legs and arms. He then inserted his finger into her sex organ ("fininger niya
ako"). Satiated, accused-appellant left the room. During the period from 1996 to 1998, accusedappellant sexually abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her
assignments. Accused-appellant was also in the sala. Rossel tended the video shop while his
mother was away. Analia went into her room and lay down in bed. She did not lock the door of the
room because her brother might enter any time. She wanted to sleep but found it difficult to do so.
Accused-appellant went to his room next to the room of Analia. He, however, entered the room of
Analia. He was wearing a pair of short pants and was naked from waist up. Analia did not mind
accused-appellant entering her room because she knew that her brother, Rossel was around.
However, accused-appellant sat on the side of her bed, placed himself on top of her, held her hands
and legs and fondled her breasts. She struggled to extricate herself. Accused-appellant removed her
panty and touched her sex organ. Accused-appellant inserted his finger into her vagina, extricated it
and then inserted his penis into her vagina. Accused-appellant ejaculated. Analia felt pain in her sex
organ. Momentarily, Rossel passed by the room of Analia after drinking water from the refrigerator,
and peeped through the door. He saw accused-appellant on top of Analia. Accused-appellant saw
Rossel and dismounted. Accused-appellant berated Rossel and ordered him to go to his room and
sleep. Rossel did. Accused-appellant then left the room. Analia likewise left the room, went out of the
house and stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not
divulge to her mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of
the house watching television. Analia tended the video shop. However, accused-appellant told Analia
to go to the sala. She refused, as nobody would tend the video shop. This infuriated accusedappellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When
Rose returned, a heated argument ensued between accused-appellant and Analia. Rose sided with
her paramour and hit Analia. This prompted Analia to shout. "Ayoko na, ayoko na." Shortly thereafter,
Rose and Analia left the house on board the motorcycle driven by her mother in going to Don Bosco
Street, Moriones, Tondo, Manila, to retrieve some tapes which had not yet been returned. When
Rose inquired from her daughter what she meant by her statement, "ayoko na, ayoko na," she told
her mother that accused-appellant had been touching the sensitive parts of her body and that he had
been on top of her. Rose was shocked and incensed. The two proceeded to Kagawad Danilo Santos
to have accused-appellant placed under arrest. On November 10, 1998, the two proceeded to the
Western Police District where Analia gave her Affidavit-Complaint to PO1 Carmelita Nocum in the
presence of SPO2 Fe H. Avindante. She related to the police investigator that accused-appellant
had touched her breasts and arms in August, 1998, September 15, 1998, October 22, 1998 and on
November 5, 1998, at 3:00 p.m. Analia then submitted herself to genitalia examination by Dr. Armie

Umil, a medico-legal officer of the NBI. The medico-legal officer interviewed Analia, told him that she
was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.8
Dr. Umil prepared and signed a report on "Living Case No. MO-98-1265" which contained her
findings during her examination on Analia, thus:
"xxx

xxx

xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed,


hemispherical, firm. , brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in
diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense.
Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in
diameter. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject at the
time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete
penetration by an average-sized adult Filipino male organ in full erection without producing
any genital injury."9
Subsequently, Analia told her mother that "mabuti na lang iyong panghihipo lang ang sinabi
ko." When Rose inquired from her daughter what she meant by her statement, Analia
revealed to her mother that accused-appellant had sexually abused her. On December 15,
1998, Analia executed a "Dagdag na Salaysay ng Paghahabla" and charged accusedappellant with rape.10
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose
agreed in 1994 to live together as husband and wife. He was then a utility worker with the Navotas
Branch of the Philippine Banking Corporation. Rose, on the other hand, was a waitress at the
Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if
they were his own children. He took care of them, as in fact he cooked and prepared their food
before they arrived home from school. At times, he ironed their school uniforms and bathed them,
except Analia who was already big. Analia was hard-headed because she disobeyed him whenever
he ordered her to do some errands. Because of Analia's misbehavior, accused-appellant and Rose
oftentimes quarreled. Rose even demanded that accused-appellant leave their house. Another
irritant in his and Rose's lives were the frequent visits of the relatives of her husband.

Sometime in 1997, accused-appellant was retrenched from his employment and received a
separation pay of P9,000.00 which he used to put up the VHS Rental and Karaoke from which he
earned a monthly income of P25,000.00. While living together, accused-appellant and Rose
acquired two colored television sets, two VHS Hi-fi recorders, one VHS player, one washing
machine, one scooter motor, two VHS rewinders, one sala set, one compact disc player and many
other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him
and used them to fabricate charges against him because Rose wanted to manage their business
and take control of all the properties they acquired during their coverture. Also, Rose was so
exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty
beyond reasonable doubt of four (4) counts of rape, defined and penalized in the seventh paragraph,
no. 1, Art. 335 of the Revised Penal Code, and meted on him the death penalty for each count. The
dispositive portion of the decision reads:
"From all the evidence submitted by the prosecution, the Court concludes that the accused is
guilty beyond reasonable doubt of the crime charged against him in these four (4) cases,
convicts him thereof, and sentences him to DEATH PENALTY in each and every case as
provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.
SO ORDERED."11
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his brief that:
"THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS
DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR."12
xxx

xxx

xxx

"THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF


FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.13
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the trial court is null
and void as it failed to comply with the requirements of Section 14, Article VIII of the 1987
Constitution and Section 1, Rule 36 of the 1997 Rules of Civil Procedure, as amended. He avers that
the court a quo made no findings of facts in its decision. The trial court merely summarized the
testimonies of the witnesses of the prosecution and those of accused-appellant and his witnesses,
and forthwith set forth the decretal portion of said decision. The trial court even failed to state in said
decision the factual and legal basis for the imposition of the supreme penalty of death on him. The
Solicitor General, on the other hand, argues that there should be no mechanical reliance on the
constitutional provision. Trial courts may well-nigh synthesize and simplify their decisions
considering that courts are harassed by crowded dockets and time constraints. Even if the trial court

did not elucidate the grounds as the legal basis for the penalties imposed, nevertheless the decision
is valid. In any event, the Solicitor General contends that despite the infirmity of the decision, there is
no need to remand the case to the trial court for compliance with the constitutional requirement as
the Court may resolve the case on its merits to avoid delay in the final disposition of the case and
afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution
provides that "no decision shall be rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based." This requirement is reiterated and implemented
by Rule 120, Section 2 of the 1985 Rules on Criminal Procedure, as amended, which reads:
"SEC. 2. Form and contents of judgment. The judgment must be written in the official
language, personally and directly prepared by the judge and signed by him and shall contain
clearly and distinctly a statement of the facts proved or admitted by the accused and the law
upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there are any; (b) the participation of the
accused in the commission of the offense, whether as principal, accomplice, or accessory
after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages
caused by the wrongful act to be recovered from the accused by the offended party, if there
is any, unless the enforcement of the civil liability by a separate action has been reserved or
waived."14
The purpose of the provision is to inform the parties and the person reading the decision on how it
was reached by the court after consideration of the evidence of the parties and the relevant facts, of
the opinion it has formed on the issues, and of the applicable laws. The parties must be assured
from a reading of the decision of the trial court that they were accorded their rights to be heard by an
impartial and responsible judge.15 More substantial reasons for the requirement are:
"For one thing, the losing party must be given an opportunity to analyze the decision so that,
if permitted, he may elevate what he may consider its errors for review by a higher tribunal.
For another, the decision if well-presented and reasoned, may convince the losing party of its
merits and persuade it to accept the verdict in good grace instead of prolonging the litigation
with a useless appeal. A third reason is that decisions with a full exposition of the facts and
the law on which they are based, especially those coming from the Supreme Court, will
constitute a valuable body of case law that can serve as useful references and even as
precedents in the resolution of future controversies."16
The trial court is mandated to set out in its decision the facts which had been proved and its
conclusions culled therefrom, as well as its resolution on the issues and the factual and legal basis
for its resolution.17 Trial courts should not merely reproduce the respective testimonies of witnesses
of both parties and come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the
Rules on Criminal Procedure. It merely summarized the testimonies of the witnesses of the
prosecution and of accused-appellant on direct and cross examinations and merely made referral to
the documentary evidence of the parties then concluded that, on the basis of the evidence of the
prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced him to death, on
each count.

The trial court even failed to specifically state the facts proven by the prosecution based on their
evidence, the issues raised by the parties and its resolution of the factual and legal issues, as well
as the legal and factual bases for convicting accused-appellant of each of the crimes charged. The
trial court rendered judgment against accused-appellant with the court declaration in the decretal
portion of its decision that it did so based on the evidence of the prosecution. The trial court
swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in its decision
why it believed and gave probative weight to the evidence of the prosecution. Reading the decision
of the trial court, one is apt to conclude that the trial court ignored the evidence of accused-appellant.
The trial court did not even bother specifying the factual and legal bases for its imposition of the
supreme penalty of death on accused-appellant for each count of rape. The trial court merely cited
seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The decision of the trial court is a
good example of what a decision, envisaged in the Constitution and the Revised Rules of Criminal
Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity of the decision
of the trial court, for compliance with the constitutional provision. However, to avert further delay in
the disposition of the cases, the Court decided to resolve the cases on their merits considering that
all the records as well as the evidence adduced during the trial had been elevated to the Court. 18 The
parties filed their respective briefs articulating their respective stances on the factual and legal
issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape
is easy but to disprove it is difficult though the accused may be innocent; (2) considering the nature
of things, and only two persons are usually involved in the crime of rape, the testimony of the
complainant should be scrutinized with great caution; (3) the evidence for the prosecution must
stand or fall on its own merits and not be allowed to draw strength from the weakness of the
evidence of the defense.19 By the very nature of the crime of rape, conviction or acquittal depends
almost entirely on the credibility of the complainant's testimony because of the fact that usually only
the participants can testify as to its occurrence. However, if the accused raises a sufficient doubt as
to any material element of the crime, and the prosecution is unable to overcome it with its evidence,
the prosecution has failed to discharge its burden of proving the guilt of the accused beyond cavil of
doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence
that he raped the private complainant precisely on September 15, 1998 and October 22, 1998.
Moreover, the medical findings of Dr. Armie Umil show that the hymen of the private complainant
was intact and its orifice so small as to preclude complete penetration by an average size adult
Filipino male organ in full erection without producing any genital injury. The physical evidence belies
private complainant's claim of having been deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for its part, contends that the prosecution through the
private complainant proved the guilt of accused-appellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified
that since 1996, when she was only eleven years old, until 1998, for two times a week, accusedappellant used to place himself on top of her and despite her tenacious resistance, touched her
arms, legs and sex organ and inserted his finger and penis into her vagina. In the process, he
ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he did to

her.20 Although private complainant did not testify that she was raped on September 15, 1998 and
October 22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in light
of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been
committed "on or about September 15, 1998" and "on or about October 22, 1998." The words "on or
about" envisage a period, months or even two or four years before September 15, 1998 or October
22, 1998. The prosecution may prove that the crime charged was committed on or about September
15, 1998 and on or about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the conviction of accused-appellant of five (5) counts of
rape, four of which were committed in December 1992 (two counts) and one each in March and
April, 1993 and in November, 1995 and one count of acts of lasciviousness committed in December
1992, on a criminal complaint for multiple rape, viz:
"That sometime in November 1995, and some occasions prior and/or subsequent thereto, in
the Municipality of Dasmarias, Province of Cavite, and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd designs, taking advantage of his
superior strength over the person of his own twelve (12) year old daughter, and by means of
force, violence and intimidation, did, then and there, willfully, unlawfully and feloniously, have
repeated carnal knowledge of Myra M. Gianan, against her will and consent, to her damage
and prejudice."22
On the contention of accused-appellant in said case that his conviction for rape in December 1992
was so remote from the date (November 1995) alleged in the Information, so that the latter could no
longer be considered as being "as near to the actual date at which the offense was committed" as
provided under Section 11, Rule 110 of the Rules on Criminal Procedure, as amended, this Court
held:
"Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so
remote from the date (November 1995) alleged in the information, so that the latter could no
longer be considered as being "as near to the actual date at which the offense was
committed" as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten
counts of rape based on an information which alleged that the accused committed multiple
rape "from November 1990 up to July 21, 1994," a time difference of almost four years which
is longer than that involved in the case at bar. In any case, as earlier stated, accusedappellant's failure to raise a timely objection based on this ground constitutes a waiver of his
right to object."23
Moreover, when the private complainant testified on how accused-appellant defiled her two times a
week from 1996 until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant
even rigorously cross-examined the private complainant on her testimony on direct examination. The
presentation by the prosecution, without objection on the part of accused-appellant, of evidence of
rape committed two times a week from 1996 until 1998 (which includes September 15, 1998 and
October 22, 1998) to prove the charges lodged against him constituted a waiver by accusedappellant of his right to object to any perceived infirmity in, and in the amendment of, the aforesaid
Informations to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her
having been repeatedly sexually abused by accused-appellant. The private complainant being of

tender age, it is possible that the penetration of the male organ went only as deep as her labia.
Whether or not the hymen of private complainant was still intact has no substantial bearing on
accused-appellant's commission of the crime.24 Even, the slightest penetration of the labia by the
male organ or the mere entry of the penis into the aperture constitutes consummated rape. It is
sufficient that there be entrance of the male organ within the labia of the pudendum.25 InPeople vs.
Baculi, cited in People vs. Gabayron,26 we held that there could be a finding of rape even if despite
repeated intercourse over a period of four years, the complainant still retained an intact hymen
without injury. In these cases, the private complainant testified that the penis of accused-appellant
gained entry into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q
What did he do while he was on top of you?
A
He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q
Can you please describe more specifically what is this and I quote "Pinatong nya
yong ano nya" and where did he place it?
A
His organ, sir.
Q
Where did he place his organ?
A
In my organ, sir. (sa ari ko po.)
Q
At this very juncture madam witness, what did you feel?
A
I felt pain, sir, and I also felt that there was a sticky substance that was coming out,
sir."27(Emphasis supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of
qualified rape. The evidence on record shows that accused-appellant is the common-law husband of
Rose, the mother of private complainant. The private complainant, as of October 1998, was still 13
years old, and under Article 335 as amended by Republic Act 7659, the minority of the private
complainant, concurring with the fact that accused-appellant is the common-law husband of the
victim's mother, is a special qualifying circumstance warranting the imposition of the death
penalty.28 However, said circumstance was not alleged in the Informations as required by Section 8,
Rule 110 of the Revised Rules on Criminal Procedure which was given retroactive effect by this
Court because it is favorable to the accused.29 Hence, even if the prosecution proved the special
qualifying circumstance of minority of private complainant and relationship, the accused-appellant
being the common-law husband of her mother, accused-appellant is guilty only of simple rape.
Under the given law, the penalty for simple rape is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private complainant for civil indemnity in the amount of
P50,000.00 and moral damages in the amount of P50,000.00 for each count of rape, or a total of
P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or
about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective
because the date of the offense "on or about August 1998" alleged therein is too indefinite, in
violation of Rule 110, Section 11 of the Revised Rules on Criminal Procedure which reads:

"Sec. 11. Date of commission of the offense. It is not necessary to state in the complaint
or information the precise date the offense was committed except when it is a material
ingredient of the offense. The offense may be alleged to have been committed on a date as
near as possible to the actual date of its commission. (11a)" 30
Accused-appellant further asserts that the prosecution failed to prove that he raped private
complainant in August 1998. Hence, he argues, he should be acquitted of said charge. The Office of
the Solicitor General, for its part, argued that the date "on or about August 1998" is sufficiently
definite. After all, the date of the commission of the crime of rape is not an essential element of the
crime. The prosecution adduced conclusive proof that accused-appellant raped private complainant
on or about August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise date of
the commission of the crime of rape is not an essential element of the crime. Failure to
specify the exact date when the rape was committed does not render the Information
defective. The reason for this is that the gravamen of the crime of rape is carnal knowledge
of the private complainant under any of the circumstances enumerated under Article 335 of
the Revised Penal Code, as amended. Significantly, accused-appellant did not even bother
to file a motion for a bill of particulars under Rule 116, Section 9 of the Revised Rules on
Criminal Procedure before he was arraigned. Indeed, accused-appellant was duly arraigned
under the Information and entered a plea of not guilty to the charge without any plaint on the
sufficiency of the Information. Accused-appellant even adduced his evidence after the
prosecution had rested its case. It was only on appeal to this Court that accused-appellant
questioned for the first time the sufficiency of the Information filed against him. It is now too
late in the day for him to do so. Moreover, inPeople vs. Salalima,31 this Court held that:
"Failure to specify the exact dates or time when the rapes occurred does not ipso facto make
the information defective on its face. The reason is obvious. The precise date or time when
the victim was raped is not an element of the offense. The gravamen of the crime is the fact
of carnal knowledge under any of the circumstances enumerated under Article 335 of the
Revised Penal Code. As long as it is alleged that the offense was committed at any time as
near to the actual date when the offense was committed an information is sufficient. In
previous cases, we ruled that allegations that rapes were committed "before and until
October 15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in
November 1995 and some occasions prior and/or subsequent thereto" and "on or about and
sometime in the year 1988" constitute sufficient compliance with Section 11, Rule 110 of the
Revised Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates when the
sexual assaults took place, we believe that the allegations therein that the acts were
committed "sometime during the month of March 1996 or thereabout," "sometime during the
month of April 1996 or thereabout," "sometime during the month of May 1996 or thereabout"
substantially apprised appellant of the crimes he was charged with since all the elements of
rape were stated in the informations. As such, appellant cannot complain that he was
deprived of the right to be informed of the nature of the cases filed against him. Accordingly,
appellant's assertion that he was deprived of the opportunity to prepare for his defense has
no leg to stand on."
The prosecution proved through the testimony of private complainant that accused-appellant raped
her two times a week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accusedappellant is guilty only of simple rape.

As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is
not criminally liable of rape. We agree with accused-appellant. The collective testimony of private
complainant and her younger brother Rossel was that on November 5, 1998, accused-appellant who
was wearing a pair of short pants but naked from waist up, entered the bedroom of private
complainant, went on top of her, held her hands, removed her panty, mashed her breasts and
touched her sex organ. However, accused-appellant saw Rossel peeping through the door and
dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep.
Accused-appellant then left the room of the private complainant. The testimony of private
complainant on direct examination reads:
"Fiscal Carisma:
Q
In between 1996 and August 1997?
A
Yes, sir, sometimes two (2) times a week.
Q
In November of 1998, do you recall of any unusual experience that happened to you
again?
A
Yes, sir.
Q
What was this unusual experience of yours?
A
He laid himself on top of me, sir.
Q
You said "he" whom are you referring to?
A
Freedie Lizada Jakosalem, sir.
Q
The same person you pointed to earlier?
A
Yes, sir.
Q
You said he placed himself on top of you in November, 1998, what did he do while he
was on top of you?
A
He's smashing my breast and he was also touching my arms and my legs, sir.
Q
What else if any madam witness?
A
He was also touching my sex organ, sir.
Q
What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution
Court:
Same ruling. Let the complainant continue considering that she is crying and still
young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his
body, did he touch your sex organ?
Witness:
With his hands, sir.
Q
What about after November 1998 was this the last incident, this unusual thing that
you experienced from the hands of the accused was this that last time, the one you narrated
in November 1998?
A
Yes, sir."32
On cross-examination, the private complainant testified, thus:

"Atty. Balaba:
Q
Who was that somebody who entered the room?
A
My stepfather Freedie Lizada, sir.
Q
He was fully dressed at that time, during the time, is that correct?
A
Yes, sir, he was dressed then, sir.
Q
And he had his pants on, is that correct?
A
He was wearing a short pants, sir.
Q
Was it a T-shirt that he had, at that time or a polo shirt?
A
He was not wearing any shirt then, sir, he was naked.
Q
When you realized that somebody was entering the room were you not afraid?
A
No, sir, I was not afraid.
Q
What happened when you realized that somebody entered the room, and the one
who entered was your stepfather, Freedie Lizada?
A
I did not mind him entering the room because I know that my brother was around but
suddenly I felt that somebody was holding me.
Q
He was holding you, where were you when he held you?
A
I was in the bed, sir, lying down.
Q
You were lying down?
A
Yes, sir.
Q
What part of the body did the accused Freedie Lizada touched you?
A
My two arms, my legs and my breast, sir.
Q
Do you mean to tell us that he was holding your two arms and at the same time your
legs, is that what you are trying to tell us?
A
He held me first in my arms and then my legs, sir.
Q
He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q
Your honor, I am just trying to
Court:
Proceed.
Atty. Balaba:
Q
He held your arms with his two hands?
A
Only with one hand, sir.
Q
Which hand were you touched?
A
I do not know which hand, sir.
Q
Which arm of yours was held by Freedie Lizada?
A
I could not recall, sir.
Q
Which side of your body was Freedie Lizada at that time?
A
I cannot recall, sir.
Q
What was the position of Freedie Lizada when he held your arms?
A
He was sitting on our bed, sir.
Q
Which side of your bed was Freedie Lizada sitting on?
A
I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:

Yes, that's why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A
I cannot recall, sir.
Q
When this happened, did you not shout for help?
A
I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was
struggling to free myself from him, sir.
Q
And you were not able to extricate yourself from him?
A
I was not able to extricate myself, sir.
Q
You were struggling with one arm of Lizada holding your arm, and the other hand was
holding your leg, is that what you are trying to tell us?
A
No, sir, it's not like that.
Q
Could you tell us, what happened, you did not shout for help and you were trying to
extricate yourself, what happened?
A
He suddenly went out of the room, sir.
Q
Now, he went
Court:
You did not shout during that time?
A
No, your honor."33
Rossel, the nine-year old brother of the private complainant corroborated in part his sister's
testimony. He testified on direct examination, thus:
"Fiscal Carisma: (continuing)
Q
Now, on November 2, 1998 do you recall where you were at about 3:00 o'clock?
A
I was outside our house, sir.
Q
Where was your house again, Mr. witness, at that time? Where was your house at
that date, time and place? At that date and time?
A
1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q
The same address?
A.
Yes, sir.
Fiscal Carisma:
Q
On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A
Yes, sir.
Q
Where was she?
A
She was sleeping, sir.
Q
Now, on that date, time and place you said you were outside your house, did you stay
the whole afternoon outside your house?
A
No, sir.
Q
Where did you go next?
A
Inside, sir.
Q
For what purpose did you get inside your house?
A
Because I was thirsty, sir.
Q
So you went to the fridge to get some water?
A
Yes, sir.
Q
And what happened as you went inside your house to get some water?
A
I saw my stepfather removing the panty of my sister and he touched her and then he
laid on top of her, sir.
Q
Do you see your stepfather inside the courtroom now?
A
Yes, sir.

Q
Will you point to him?
A
He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie
Lizada.
Fiscal Carisma:
Q
This thing that your father was that your stepfather did to your elder sister, did you
see this before or after you went to the fridge to get some water?
A
I already got water then, sir.
Q
What did you do as you saw this thing being done by your stepfather to your elder
sister?
A
I was just looking at them when he saw me, sir.
Q
Who, you saw who? You are referring to the accused Freedie Lizada?
A
Yes, sir.
Q
So, what did you do as you were seen by your stepfather?
A
He scolded me, he shouted at me, he told me something and after that he went to the
other room and slept, sir."34
Rossel testified on cross-examination, thus:
"Q
So you got thirsty, is that correct, and went inside the house?
A
Yes, sir.
Q
And you took a glass of water from the refrigerator?
A
Yes, sir.
Q
And it was at this time that you saw the accused Freedie Lizada touching your sister?
A
Yes, sir.
Q
Where was this refrigerator located?
A
In front of the room where my sister sleeps, sir.
Q
So the door of your sister's room was open?
A
Yes, sir.
Q
And okay, you said your sister was sleeping. What was the position of your sister
when you said the accused removed her panty?
A
She was lying straight, but she was resisting, sir.
Q
Were you noticed by your sister at that time?
A
No, sir.
Q
And your sister did not call for help at that time?
A
No, sir.
Q
And all this time you saw the accused doing this, from the refrigerator where you
were taking a glass of water?
A
Yes, sir.
Q
Did you not say something to the accused?
A
No, sir, I was just looking.
Q
So your sister was lying down when the accused removed her panty, is that what you
are trying to tell us?
A
Yes, sir.
Q
And where was the and the accused saw you when he was removing the panty of
your sister?
A
Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q
So you said the accused was touching your sister. What part of her body was
touched by the accused?
A
Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q
You saw with what hand was the accused touching your sister?

A
Yes, sir.
Q
What hand was he touching your sister?
A
This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q
And which part of your sister's body was the accused touching with his right hand?
Your sister's body was the accused touching with his right hand?
A
Her right leg, sir.
Q
How about his left hand, what was the accused doing with his left hand?
A
Removing her panty, sir.
Q
Removing her?
A
Panty, sir.
Q
Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? I'm sorry.
Q
So, the accused was touching with his right hand the left thigh of your sister
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q
Rather the right thigh of your sister and with his left hand removing the panty, is that
what you are telling to tell us?
A
Yes, sir.
Q
And your sister all the time was trying to was struggling to get free, is that not
correct?
A
Yes, sir, she was resisting. (witness demonstrating)
Q
She was struggling was the accused able to remove the panty?
A
Yes, sir.
Q
And all the time you were there looking with the glass of water in your hand?
A
Yes, sir."35
In light of the evidence of the prosecution, there was no introduction of the penis of accusedappellant into the aperture or within the pudendum of the vagina of private complainant. Hence,
accused-appellant is not criminally liable for consummated rape. 36
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts
of lasciviousness defined in Article 336 of the Revised Penal Code or attempted rape under Article
335 of the said Code, as amended in relation to the last paragraph of Article 6 of the Revised Penal
Code. In light of the evidence on record, we believe that accused-appellant is guilty of attempted
rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:

"Art. 336. Acts of Lasciviousness. Any person who shall commit any act of lasciviousness
upon other persons of either sex, under any of the circumstances mentioned in the
preceding article, shall be punished by prision correccional."37
For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the
confluence of the following essential elements:
"1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age." 38
"Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which
has relation to moral impurity; or that which is carried on a wanton manner.39
The last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance."
The essential elements of an attempted felony are as follows:
"1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance."40
The first requisite of an attempted felony consists of two elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed."41
An overt or external act is defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.42 The raison d'etre for the law requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal;
and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that

must be lacking before the act becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality remains, no one can
say with certainty what the intent of the accused is. 43 It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or
some subsequent step in a direct movement towards the commission of the offense after the
preparations are made."44 The act done need not constitute the last proximate one for completion. It
is necessary, however, that the attempt must have a causal relation to the intended crime. 45 In the
words of Viada, the overt acts must have an immediate and necessary relation to the offense. 46
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts
which consist of devising means or measures necessary for accomplishment of a desired object or
end.47 One perpetrating preparatory acts is not guilty of an attempt to commit a felony. However, if
the preparatory acts constitute a consummated felony under the law, the malefactor is guilty of such
consummated offense.48 The Supreme Court of Spain, in its decision of March 21, 1892, declared
that for overt acts to constitute an attempted offense, it is necessary that their objective be known
and established or such that acts be of such nature that they themselves should obviously disclose
the criminal objective necessarily intended, said objective and finality to serve as ground for
designation of the offense.49
There is persuasive authority that in offenses not consummated as the material damage is wanting,
the nature of the action intended (accion fin) cannot exactly be ascertained but the same must be
inferred from the nature of the acts executed (accion medio).50 Hence, it is necessary that the acts of
the accused must be such that, by their nature, by the facts to which they are related, by
circumstances of the persons performing the same, and b the things connected therewith, that they
are aimed at the consummation of the offense. This Court emphasized in People vs.
Lamahang51 that:
"The relation existing between the facts submitted for appreciation and the offense which
said facts are supposed to produce must be direct; the intention must be ascertained from
the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that
the mind be able to cause a particular injury."52
If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance,
he is not guilty of an attempted felony.53 The law does not punish him for his attempt to commit a
felony.54 The rationale of the law, as explained by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor
de la tentativa, despues de haber comenzado a ejecutar el delito por actos exteriores, se detiene,
por un sentimiento libre y espontaneo, en el borde del abismo, salvo esta. Es un llamamiento al
remordimiento, a la conciencia, una gracia un perdon que concede la Ley al arrepentimiento
voluntario."55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is voluntarily abandoned. There
is no conceivable overt act to which the abandoned purpose could be attached. Secondly,
the policy of the law requires that the offender, so long as he is capable of arresting an evil
plan, should be encouraged to do so, by saving him harmless in case of such retreat before
it is possible for any evil consequences to ensue. Neither society, nor any private person,
has been injured by his act. There is no damage, therefore, to redress. To punish him after
retreat and abandonment would be to destroy the motive for retreat and abandonment." 56

It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him
from criminal liability for the intended crime but it does not exempt him from the crime committed by
him before his desistance.57
In light of the facts established by the prosecution, we believe that accused-appellant intended to
have carnal knowledge of private complainant. The overt acts of accused-appellant proven by the
prosecution were not mere preparatory acts. By the series of his overt acts, accused-appellant had
commenced the execution of rape which, if not for his spontaneous desistance, will ripen into the
crime of rape. Although accused-appellant desisted from performing all the acts of execution
however his desistance was not spontaneous as he was impelled to do so only because of the
sudden and unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted
rape.58 In a case of similar factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal
Code, the appellant can only be convicted of attempted rape. He commenced the
commission of rape by removing his clothes, undressing and kissing his victim and lying on
top of her. However, he failed to perform all the acts of execution which should produce the
crime of rape by reason of a cause other than his own spontaneous desistance, i.e., by the
timely arrival of the victim's brother. Thus, his penis merely touched Mary Joy's private organ.
Accordingly, as the crime committed by the appellant is attempted rape, the penalty to be
imposed on him should be an indeterminate prison term of six (6) years of prision
correccional as minimum to twelve (12) years of prision mayor as maximum."
The penalty for attempted rape is prision mayor which is two degrees lower than reclusion
perpetua.59 Accused-appellant should be meted an indeterminate penalty the minimum of which
should be taken from prision correccional which has a range of from six months and one day to six
years and the maximum of which shall be taken from the medium period of prision mayor which has
a range of from eight years and one day to ten years, without any modifying circumstance. Accusedappellant is also liable to private complainant for moral damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54,
is SET ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable
doubt of simple rape under Article 335 of the Revised Penal Code as amended and is hereby meted
the penalty of reclusion perpetua. Accused-appellant is also hereby ordered to pay private
complainant Analia Orillosa the amounts of P50,000.00 by way of civil indemnity and P50,000.00 by
way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape
under Article 335 of the Revised Penal Code as amended in relation to Article 6 of the said Code and
is hereby meted an indeterminate penalty of from six years of prision correccional in its maximum
period, as minimum to ten years ofprision mayor in its medium period, as maximum. Accusedappellant is hereby ordered to pay private complainant Analia Orillosa the amount of P25,000.00 by
way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty
beyond reasonable doubt of two counts of simple rape, defined in Article 335 of the Revised Penal
Code as amended and is hereby meted the penalty of reclusion perpetua for each count. Accusedappellant is hereby ordered to pay to private complainant Analia Orillosa the amount of P50,000.00
by way of civil indemnity and the amount of P50,000.00 by way of moral damages for each count, or
a total amount of P200,000.00.

G.R. No. 138033

February 22, 2006

RENATO BALEROS, JR., Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal
of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as
reiterated in its March 31, 1999 resolution2 denying petitioners motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO)
guilty of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with
attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within
the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then
and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of
her with the intention to have carnal knowledge with her but was unable to perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance, said
acts being committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not
Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson
Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania
(Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in
front of her bedroom door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on
the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting
off her attacker by kicking him until at last her right hand got free. With this the opportunity
presented itself when she was able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over
the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid.,
p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle
was the feel of her attackers clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He was wearing a t-shirt and
shorts Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo
Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN,
July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened,
another window inside her bedroom was now open. Her attacker had fled from her room going
through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills
which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until
a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita"
(TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in
the early morning of December 13, 1991, wearing a white t-shirt with a marking on the front of
the T-shirt T M and a Greek letter (sic) and below the quoted letters the word 1946 UST
Medicine and Surgery (TSN, October 9, 1992, p. 9) and black shorts with the brand name Adidas
(TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being
leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph
Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] . S/G Ferolin made the following entry in the security
guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our
tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this
coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."


(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph
Bernard Africa (Joseph), .
xxx xxx xxx
Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the
time CHITOs knocking on the door woke him up, . He was able to fix the time of CHITOs arrival at
1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the
knock at the door .
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he
let the latter in. . It was at around 3 oclock in the morning of December 13, 1991 when he woke up
again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), .
xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open
window through which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to
CHITO . He mentioned to the latter that something had happened and that they were not being
allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in
Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if
the others were there. xxx.
People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO
and Joseph to go with them to Camp Crame where the two (2) were questioned .
An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo
Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking with the authorities,
Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw
the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the
latter usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt
with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3)
white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITOs because CHITO had lent the very same one to him .

The t-shirt with CHITOs fraternity symbol, CHITO used to wear on weekends, and the handkerchief
he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted
mainly of Renato R. Alagadans testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to
be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian,
Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 oclock that afternoon along
with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had
seen CHITO leave it. Not until later that night at past 9 oclock in Camp Crame, however, did Renato
know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp
Crame, having acted in response to the written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted. Her Chemistry Report No. C-487-91 (Exhibit
"E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked JONAS with the following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated
specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing
the crime imputed to him or making at any time amorous advances on Malou. Unfolding a different
version of the incident, the defense sought to establish the following, as culled from the same
decision of the appellate court:

In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto
Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity . MALOU, , was known to
him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog
over dark pants and leather shoes, arrived at their Fraternity house located at Dos Castillas,
Sampaloc, Manila at about 7 oclock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of
their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4)
presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the
pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was
dunked. Perla Duran, , offered each dry clothes to change into and CHITO put on the white tshirt with the Fraternitys symbol and a pair of black shorts with stripes. xxx .
Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the symbol TAU
Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left
the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray
traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at
room 306 in the afternoon of the previous day .
At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached.
Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26).
S/G Ferolin initially refused CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window
and for five (5) minutes vainly tried to open the door until Rommel Montes, approached him and
even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried
to open the door of Unit 306 but was likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door.
Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went
inside the bedroom. CHITO , changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school
uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter
why this was so and, without elaborating on it, Joseph told him that something had happened and to
just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building . When two (2)
CIS men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman
Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the
two (2) of them, CHITO and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to
him for 30 minutes. xxx. No one interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo
physical examination at the Camp Crame Hospital .. At the hospital, CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to strip .
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by
Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 oclock
in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he
and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were already laid out on
the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were
his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag
which he had left at Room 306 in the early evening of December 12, 1991 before going to the
fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when
he returned to the apartment at past 1:00 oclock in the early morning of December 13, 1991 (TSN,
June 16, 1994, p. 24), nor when he dressed up at about 6 oclock in the morning to go to school and
brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the
first time that the black Adidas short pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo
and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr.
Durans place at Greenhills, riding on the same car going to and coming from the party and dropping
the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was
wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified
seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the
door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes
after the dunking party held in her fathers house.8 Presented as defense expert witness was
Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed

that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth
on which it is applied.9
On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of attempted rape
and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused
Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape
as principal and as charged in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as
Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties
provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum
of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorneys fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR
No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed
the trial courts judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the
decision appealed from is hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred 1. In not finding that it is improbable for petitioner to have committed the attempted rape
imputed to him, absent sufficient, competent and convincing evidence to prove the offense
charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence
since the prosecution failed to satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable,
inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that
moral certainty has not been met, hence, he should be acquitted on the ground that the
offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred
in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of
attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the
Court is disposed to rule for petitioners acquittal, but not necessarily because there is no direct
evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on
the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an
eyewitness to the very act of commission of the crime. There are two types of positive identification.
A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may, however, be instances where,
although a witness may not have actually witnessed the very act of commission of a crime, he may
still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive identification, which
forms part of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort
to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret
and under condition where concealment is highly probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence
may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction
if
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence,
which, when taken together with the other pieces of evidence constituting an unbroken chain, leads
to only fair and reasonable conclusion, which is that petitioner was the intruder in question.
We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the
petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of
MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress
to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph
Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity Tshirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though
it was dark during their struggle, MALOU had made out the feel of her intruders apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the bottom.

From CHITOs bag which was found inside Room 310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief
stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala, identified
these garments as belonging to CHITO. As it turned out, laboratory examination on these items and
on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief and
MALOUs night dress both contained chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had
been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth
soaked in chemical while holding her body tightly under the weight of his own, had commenced the
performance of an act indicative of an intent or attempt to rape the victim. It is argued that
petitioners actuation thus described is an overt act contemplated under the law, for there can not be
any other logical conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that
if petitioners intention was otherwise, he would not have lain on top of the victim. 15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By using force
or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When
the woman is under twelve years of age or is demented. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender commences the
commission of rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in
People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense; that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as
where the purpose of the offender in performing an act is not certain, meaning the nature of the act
in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate
offense, which is not a juridical fact from the standpoint of the Penal Code. 18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt
act of rape.
1avvphil.net

Overt or external act has been defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to

sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or attempt to rape Malou. It
cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part
to undress Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybodys guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would
have taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual
organ is not yet exposed because his intended victim is still struggling. Where the intended victim is
an educated woman already mature in age, it is very unlikely that a rapist would be in his naked
glory before even starting his attack on her. He has to make her lose her guard first, or as in this
case, her unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule
on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable doubt. 21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape,
pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for
there to be an attempted rape, the accused must have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainants sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus
criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of
any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face of the chemical-soaked cloth and having
struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute
unjust vexation punishable as light coercion under the second paragraph of Article 287 of the
Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime
the right to be informed of the nature and cause of the accusation, 24 it cannot be said that petitioner
was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or

compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the
element of restraint or compulsion for the reason that this term is broad enough to include any
human conduct which, although not productive of some physical or material harm, would unjustly
annoy or irritate an innocent person.25 The paramount question is whether the offenders act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is
directed.26 That Malou, after the incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond
cavil that she was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal
Code is arresto menor or a fine ranging from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial
Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING
petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged
GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine
of P200.00, with the accessory penalties thereof and to pay the costs.

G.R. No. 202867

July 15, 2013

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
REGIE LABIAGA, Appellant.
DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the Court of AppealsCebu (CA-Cebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the
Joint Decision2 dated 10 March 2008 of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66
(RTC), in Criminal Case No. 2001-155) convicting Regie Labiaga alias "Banok" (appellant) of murder
and Criminal Case No. 2002-1777 convicting appellant of frustrated murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and
Cristy Demapanag (Demapanag), was charged with Murder with the Use of Unlicensed Firearm
under an Information3which reads:
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
and helping one another, armed with unlicensed firearm, with deliberate intent and decided purpose
to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and shoot JUDY CONDE alias JOJO with said unlicensed firearm,
hitting her and inflicting gunshot wounds on the different parts of her breast which caused her death
thereafter.

CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in
Criminal Case No. 2002-1777, under an Information4 which states:
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
and helping one another, armed with unlicensed firearm, with deliberate intent and decided purpose
to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and shoot Gregorio Conde with said unlicensed firearm, hitting him on
the posterior aspect, middle third right forearm 1 cm. In diameter; thereby performing all the acts of
execution which would produce the crime of Murder as a consequence, but nevertheless did not
produce it by reason of causes independent of the will of the accused; that is by the timely and able
medical assistance rendered to said Gregorio Conde which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both
cases and joint trial ensued thereafter. The prosecution presented four witnesses: Gregorio Conde,
the victim in Criminal Case No. 2002-1777; Glenelyn Conde, his daughter; and Dr. Jeremiah
Obaana and Dr. Edwin Jose Figura, the physicians at the Sara District Hospital where the victims
were admitted. The defense, on the other hand, presented appellant, Demapanag, and the latters
brother, Frederick.
Version of the prosecution
The prosecutions version of the facts is as follows: At around 7:00 p.m. on 23 December 2000,
Gregorio Conde, and his two daughters, Judy and Glenelyn Conde, were in their home at Barangay
Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio stepped outside. Glenelyn was in their store, which was
part of their house.
Shortly thereafter, appellant, who was approximately five meters away from Gregorio, shot the latter.
Gregorio called Judy for help. When Judy and Glenelyn rushed to Gregorios aid, appellant shot
Judy in the abdomen. The two other accused were standing behind the appellant. Appellant said,
"she is already dead," and the three fled the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced dead on arrival
while Gregorio made a full recovery after treatment of his gunshot wound.
Dr. Jeremiah Obaana conducted the autopsy of Judy. His report stated that her death was caused
by "cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot wound." 5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He found that
Gregorio sustained a gunshot wound measuring one centimeter in diameter in his right forearm and
"abrasion wounds hematoma formation" in his right shoulder.6
Version of the defense
Appellant admitted that he was present during the shooting incident on 23 December 2000. He
claimed, however, that he acted in self-defense. Gregorio, armed with a shotgun, challenged him to
a fight. He attempted to shoot appellant, but the shotgun jammed. Appellant tried to wrest the

shotgun from Gregorio, and during the struggle, the shotgun fired. He claimed that he did not know if
anyone was hit by that gunshot.
Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is approximately
14 kilometers away from the crime scene. This was corroborated by Frederick, Demapanags
brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence. Appellant,
however, was convicted of murder and frustrated murder. The dispositive portion of the Joint
Decision reads:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @
"Banok" GUILTY beyond reasonable doubt of the Crime of Murder in Crim. Case No. 2001-1555 and
hereby sentences the said accused to reclusion perpetua together with accessory penalty provided
by law, to pay the heirs of Judy CondeP50,000.00 as civil indemnity, without subsidiary
imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the crime of Frustrated Murder and hereby sentences the said accused to a
prison term ranging from six (6) years and one (1) day of prision mayor as minimum to ten (10) years
and one (1) day of reclusion temporal as maximum, together with the necessary penalty provided by
law and without subsidiary imprisonment in case of insolvency and to pay the costs.
Accuseds entire period of detention shall be deducted from the penalty herein imposed when the
accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in both
cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to
release accused Cristy Demapanag from custody unless he is being held for some other valid or
lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTCs Joint Decision, claiming that "the RTC gravely erred in convicting the
appellant of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable
doubt."8 The CA-Cebu, however, upheld the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary
damages in both criminal cases. The CA-Cebu made a distinction between the civil indemnity
awarded by the RTC in Criminal Case No. 2001-1555 and the moral damages. The CA-Cebu
pointed out that:
The trial court granted the amount of P50,000.00 as civil indemnity in Criminal Case No. 2001-1555.
It did not award moral damages. Nonetheless, the trial court should have awarded both, considering
that they are two different kinds of damages. For death indemnity, the amount of P50,000.00 is fixed
"pursuant to the current judicial policy on the matter, without need of any evidence or proof of

damages. Likewise, the mental anguish of the surviving family should be assuaged by the award of
appropriate and reasonable moral damages."9
The dispositive portion of the Decision of the CA-Cebu reads:
WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated March 10,
2008 of the Regional Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with
MODIFICATIONS. The dispositive portion of the said Joint Decision should now read as follows:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @
"Banok" GUILTY beyond reasonable doubt of the crime of Murder in Crim. Case No. 2001-1555 and
hereby sentences the said accused to reclusion perpetua together with the accessory penalty
provided by law, to pay the heirs of Judy Conde P50,000.00 as civil indemnity, P50,000.00 as moral
damages and P25,000.00 as exemplary damages, without subsidiary imprisonment in case of
insolvency and to pay the costs.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the crime of Frustrated Murder and hereby sentences the said accused to suffer
the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal, as maximum, together with the
accessory penalty provided by law, to pay Gregorio Conde P25,000.00 as moral damages
andP25,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency and
to pay the costs Accused(s) entire period of detention shall be deducted from the penalty herein
imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in
both cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to
release accused Cristy Demapanag from custody unless he is being held for some other valid or
lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of
attempted murder and not frustrated murder. We uphold appellants conviction in Criminal Case No.
2001-1555 for murder, but modify the civil indemnity awarded in Criminal Case No. 2001-1555, as
well as the award of moral and exemplary damages in both cases.
Justifying circumstance of self-defense
Appellants feeble attempt to invoke self-defense in both cases was correctly rejected by the RTC
and the CA-Cebu. This Court, in People v. Damitan,11 explained that:
When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to
him to prove by clear and convincing evidence the elements of his defense. However, appellants

version of the incident was uncorroborated. His bare and self-serving assertions cannot prevail over
the positive identification of the two (2) principal witnesses of the prosecution. 12
Appellants failure to present any other eyewitness to corroborate his testimony and his unconvincing
demonstration of the struggle between him and Gregorio before the RTC lead us to reject his claim
of self-defense. Also, as correctly pointed out by the CA-Cebu, appellants theory of self-defense is
belied by the fact that:
x x x The appellant did not even bother to report to the police Gregorios alleged unlawful aggression
and that it was Gregorio who owned the gun, as appellant claimed. And, when appellant was
arrested the following morning, he did not also inform the police that what happened to Gregorio was
merely accidental.13
Appellants claim that he did not know whether Gregorio was hit when the shotgun accidentally fired
is also implausible.
In contrast, we find that the Condes account of the incident is persuasive. Both the CA-Cebu and
the RTC found that the testimonies of the Condes were credible and presented in a clear and
convincing manner. This Court has consistently put much weight on the trial courts assessment of
the credibility of witnesses, especially when affirmed by the appellate court. 14 In People v.
Mangune,15 we stated that:
It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter
best undertaken by the trial court because of its unique opportunity to observe the witnesses first
hand and to note their demeanor, conduct, and attitude under grilling examination. These are
important in determining the truthfulness of witnesses and in unearthing the truth, especially in the
face of conflicting testimonies. For, indeed, the emphasis, gesture, and inflection of the voice are
potent aids in ascertaining the witness credibility, and the trial court has the opportunity to take
advantage of these aids.16
Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted
with arbitrariness or oversight or misapprehension of relevant facts, the same must be sustained by
this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which
the victim was not afforded any opportunity to defend himself or resist the attack. 17 The existence of
treachery is not solely determined by the type of weapon used. If it appears that the weapon was
deliberately chosen to insure the execution of the crime, and to render the victim defenseless, then
treachery may be properly appreciated against the accused.18
In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12gauge shotgun against two unarmed victims is undoubtedly treacherous, as it denies the victims the
chance to fend off the offender.
We note, however, that appellant should be convicted of attempted murder, and not frustrated
murder in Criminal Case No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the commission of felonies:

Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those
which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.
In Serrano v. People,19 we distinguished a frustrated felony from an attempted felony in this manner:
1.) In a frustrated felony, the offender has performed all the acts of execution which should
produce the felony as a consequence; whereas in an attempted felony, the offender merely
commences the commission of a felony directly by overt acts and does not perform all the
acts of execution.
2.) In a frustrated felony, the reason for the non-accomplishment of the crime is some cause
independent of the will of the perpetrator; on the other hand, in an attempted felony, the
reason for the non-fulfillment of the crime is a cause or accident other than the offenders
own spontaneous desistance.20
In frustrated murder, there must be evidence showing that the wound would have been fatal were it
not for timely medical intervention.21 If the evidence fails to convince the court that the wound
sustained would have caused the victims death without timely medical attention, the accused should
be convicted of attempted murder and not frustrated murder.
In the instant case, it does not appear that the wound sustained by Gregorio Conde was mortal. This
was admitted by Dr. Edwin Figura, who examined Gregorio after the shooting incident:
Prosecutor Con-El:
Q: When you examined the person of Gregorio Conde, can you tell the court what was the situation
of the patient when you examined him?
A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior
aspect right shoulder.22
Since Gregorios gunshot wound was not mortal, we hold that appellant should be convicted of
attempted murder and not frustrated murder. Under Article 51 of the Revised Penal Code, the
corresponding penalty for attempted murder shall be two degrees lower than that prescribed for

consummated murder under Article 248, that is, prision correccional in its maximum period to prision
mayor in its medium period. Section 1 of the Indeterminate Sentence Law provides:
x x x the court shall sentence the accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly imposed under the
rules of the Revised Penal Code, and the minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense.
1wphi1

Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months
and one (1) day of prision correccional in its medium period to eight (8) years and one (1) day of
prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by
the lower court in both cases. In Criminal Case No. 2001-1555, this Court hereby
awards P75,000.00 as civil indemnity23 andP30,000.00 as exemplary damages.24 The award
of P50,000.00 as moral damages in the foregoing case is sustained. Appellant is also liable to
pay P40,000.00 as moral damages and P30,000.00 as exemplary damages, in relation to Criminal
Case No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R.
CEB CR-HC No. 01000 with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that
appellant Regie Labiaga is GUILTY of Attempted Murder and shall suffer an indeterminate sentence
ranging from two (2) years, four (4) months and one (1) day of prision correccional as minimum, to
eight (8) years and one (1) day of prision mayor as maximum, and pay P40,000.00 as moral
damages and P30,000.00 as exemplary damages. In Criminal Case No. 2001-1555, appellant shall
pay P75,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary
damages.
G. R. No. 160188

June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an accused was guilty
of frustrated or consummated theft was in 1918, in People v. Adiao. 3 A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984, in Empelis v.
IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information 6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On
19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space. 7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of P12,090.00.9
Petitioner and Calderon were first brought to the SM security office before they were transferred on
the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation.
It appears from the police investigation records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter was referred to the
Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident. 10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. 11 As the
queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of
the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was

detained overnight, and eventually brought to the prosecutors office where he was charged with
theft.14 During petitioners cross-examination, he admitted that he had been employed as a "bundler"
of GMS Marketing, "assigned at the supermarket" though not at SM. 15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused
as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court
of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently
dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was never placed in a position to freely
dispose of the articles stolen.20 However, in its Decision dated 19 June 2003,21 the Court of Appeals
rejected this contention and affirmed petitioners conviction. 22 Hence the present Petition for
Review,23 which expressly seeks that petitioners conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value
of P12,090.00 of which he was charged.25 As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court
of Appeals. The only question to consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions
rendered many years ago by the Court of Appeals: People v. Dio 27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings
since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Dio and Flores have attained a level of renown reached by very few
other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and
Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit
with the stolen property through a supervised egress, such as a supermarket checkout counter or a
parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower
courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and

Flores and the theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and
should continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.30
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A
felony is consummated "when all the elements necessary for its execution and accomplishment are
present." It is frustrated "when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own spontaneous
desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete." 34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only
would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial
concession that all of the acts of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a
crime," and accordingly, there can be no crime when the criminal mind is wanting. 35 Accepted in this
jurisdiction as material in crimes mala in se,36 mens rea has been defined before as "a guilty mind, a
guilty or wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the
statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no
mens rea requirement infringes on constitutionally protected rights." 39 The criminal statute must also

provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the felony is produced. Without such
provision, disputes would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making
it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the
property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the
Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the owner," 43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the property of another." 44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must
further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve." 45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking 48 or an intent to permanently deprive
the owner of the stolen property;49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft "produced." Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law that theft is already
"produced" upon the "tak[ing of] personal property of another without the latters consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under observation during the entire

transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that "all the elements of
the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant had performed all the acts
of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the
case; just at this moment he was caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.) 56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla, 57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, "caught hold of the [accused]s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman." 58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocketbook, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there
is another school of thought on when theft is consummated, as reflected in the Dio and Flores
decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by the United States Army, had driven his truck into
the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had
been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking."60 This point was deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la
consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena. 62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of frustrated theft. 63
Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to whether the theft is consummated or frustrated. This
theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which

according to the division of the court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Dio]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually contained other merchandise as
well.65The accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance"
between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Dio, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once." 66 Pouncing on
this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods at once." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted,"67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether
the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even
if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas
o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves
another important consideration, as it implies that if the actor was in a capacity to freely dispose of
the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Dio or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the item stolen could
lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x." 68
In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of
the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[69 ], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been
based on Viadas opinion that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states
that "[i]n theft or robbery the crime is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making use of the thing was
frustrated."72
There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and
Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that
"[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense."76
In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to the
stage of execution of that felony."77 Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts
1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.80

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all the
acts of execution which should have produced the felon as a consequence." 81 However, per Article 6
of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was not able to perform all the
acts of execution, the crime is attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was
then in place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co
intencin de lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos
previstos en los artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo
prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply
defined as "[e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado" 82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually
utilized by Viada to answer the question whether frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision
of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was
apparently very different from Dio, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled. 84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that effect. 85 A few decades later, the esteemed
Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que
impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos"
frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos,
conforme a lo antes expuesto, son hurtos consumados.86
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda
de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente
porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho
de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del

hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados.87 (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating
the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought
that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace
cuanto es necesario para la consumacin del hurto no lo consume efectivamente." Otherwise put, it
would be difficult to foresee how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court
that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that must compel us to
adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise
not out of obeisance to an inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment. 88 The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things. 90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain,
of personal property of another without the latters consent. While the Dio/Flores dictum is
considerate to the mindset of the offender, the statutory definition of theft considers only the

perspective of intent to gain on the part of the offender, compounded by the deprivation of property
on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as
earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime
of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable period of time that he was
able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.92 And long ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is qualified by other conditions, such as that the
taking must be effectedanimo lucrandi and without the consent of the owner; and it will be here
noted that the definition does not require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a distinction of no slight importance. 94
Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of ones personal property, is the element which produces
the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal Code,
theft cannot have a frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to
freely dispose of the stolen property frustrates the theft would introduce a convenient defense for

the accused which does not reflect any legislated intent,95 since the Court would have carved a
viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at the
scene of the crime, the number and identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of free disposal at
any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Dio itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
G.R. No. 126148 May 5, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGAPITO QUIANOLA y ESCUADRO and EDUARDO ESCUADRO y FLORO, accusedappellants.
VITUG, J.:

In People vs. Orita, 1 this Court has declared that the crime of frustrated rape is non-existent. The
pronouncement, notwithstanding, on 01 March 1996, more than six years after the promulgation of
the decision in Orita, the Regional Trial Court ("RTC") of Cebu City, Branch 14, has convicted
accused Agapito Quianola y Escuadro and Eduardo Escuadro y Floro, herein appellants, of the
crime of frustrated rape, principally on the strength of People vs. Eriia 2 which this Court, in
the Orita decision, has considered to be a "stray" decision. The 1st March 1996 decision of the RTC
of Cebu City imposing upon each of the accused the penalty ofreclusion perpetua "of Forty (40)
Years," has been brought up by them to this Court. The appeal opens up the whole case for review.
The information, dated 06 April 1994, charging the two accused with the crime of rape reads:
That on or about the 5th day of March, 1994, at about 11:30 o'clock in the evening,
more or less, at Barangay Tangil, Municipality of Dumanjug, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with lewd
design and by means of force and intimidation, did then and there willfully, unlawfully
and feloniously lie and succeed in having carnal knowledge of the offended party
Catalina Carciller, fifteen (15) years of age, against her will and consent.
CONTRARY TO LAW. 3
Already in force and effect at the time of the averred commission of the crime are the provisions of
Republic Act No. 7659, amending the Revised Penal Code, which define and penalize rape, as
follows:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or
on the occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:
1. when the victim is under eighteen (18) years of age
and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law-spouse of
the parent of the victim.
2. when the victim is under the custody of the police
or military authorities.
3. when the rape is committed in full view of the
husband, parent, any of the children or other relatives
within the third degree of consanguinity.
4. when the victim is a religious or a child below
seven (7) years old.
5. when the offender knows that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS)
disease.
6. when committed by any member of the Armed
Forces of the Philippines or the Philippine National
Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the
victim has suffered permanent physical mutilation.
Duty assisted by counsel the two accused pleaded not guilty to the crime charged. During the trial
that ensued, the prosecution and the defense presented respective versions of the case.
The story of prosecution was the first to be told.
Catalina Carciller her cousin 15-year-old Rufo Ginto and another male companion named Richard
Diaz, went to attend a dance at around ten o'clock in the evening of 05 March 1994 in Sitio Bangag
Tangil, Dumanjug, Cebu. Catalina born on 09 November 1978, 4 was just then fifteen (15) years and
four (4) months old. She was a student at the Bito-on National vocational School at Dumanjug Cebu.
About an hour later they left the party and were soon on their way home. The three unsuspecting
youngsters stopped momentarily to rest at a waiting shed beside the Tangil Elementary School.
Accused Agapito Quianola a.k.a. "Petoy" and accused Eduardo Escuadro a.k.a. "Botiquil" who
were both armed with guns suddenly turned up Quianola beaming his flashlight at the trio while
Escuadro stood by focused his attention on Catalina. Quionala announced that he and Escuardo
were members of New People's Army ("NPA"). Quionala instructed Escuadro to take care of the
male companions of Catalina while he (Quianola) held the latter at gunpoint.
Escuadro brought Diaz and Ginto outside the waiting shed area. He ordered the duo to lie face down
on the ground and then urinated at them. While Escuadro was fixing the zipper of his pants, Diaz
and Ginto were bale to escape and ran away. Meanwhile Quianola with his gun pointed at Catalina,
forcibly brought her towards the nearby school. Catalina heard a gunfire but Quianola assured her

that it was only an exploding firecracker. When Escuadro again showed up, Catalina asked about
her two friends. Quianola replied that he had ordered them to go home. Catalina begged that she
herself be allowed to leave. Pretending to agree, they walked the path towards the road behind the
school. Then, unsuspectingly, Quianola forced Catalina to sit on the ground. She resisted but
Quianola, pointing his gun at her, warned her that if she would not accede to what he wanted he
would kill her. Catalina started to cry. Quianola told Escuadro to remove her denim pants. Catalina
struggled to free herself from Escuadro's hold but to no avail. Escuadro ultimately succeeded in
undressing her. Quianola unzipped his pants and laid on top of her while Escuadro held her legs
Quianola "started to pump, to push and pull" 5 even as Catalina still tried desperately to free herself
from him. She felt his organ "on the lips of (her) genitalia." 6 When Quianola had satisfied his lust,
Escuadro took his turn by placing himself on top of Catalina. Catalina could feel the sex organ of
Escuadro "on the lips of (her) vulva" 7 while he made a push and pull movement. Quianola, who
stood by, kept on smoking a cigarette.
Escuadro and Quianola scampered immediately after Catalina's ordeal. Failing to find her pair of
pants and panty. Catalina was left wearing her T-shirt and brassieres. Catalina just then sat down,
not knowing what to do, until she finally started to run home fearing that she might be followed. Upon
reaching home, Catalina went upstairs and, afraid that the culprit would still come after her, hid
herself behind the door. Baffled by Catalina's strange behavior, her mother and her elder sister took
turns interrogating her. Catalina finally said that she was raped but she would not reveal the names
of the persons who had committed the dastardly act because of their threat.
1wphi1.nt

Guillermo Zozobrado learned from his wife, Catalina's sister, that Catalina had been raped. He
promptly repaired to the municipal hall of Dumanjug to report the crime. Policemen were immediately
dispatched to the Carcillers' residence. Still in a state of shock, Catalina initially kept mum about it;
later, when the police officers returned at daytime, she was able to respond to questions and to
disclose that "Petoy," referring to Agapito Quianola, and "Botiquil," the other accused Eduardo
Escuadro, were the persons who ravished her. The officers later invited her to the police station to
identify a suspect whom she positively identified to be "Botiquil" or Eduardo Escuadro.
Living Case Report No. 94-MI-7, 8 prepared by Dr. Tomas P. Refe, medico-legal officer of the
National Bureau of Investigation ("NBI") of Region 7, Central Visayas, who conducted the physical
examination of Catalina on 07 March 1994, showed that there was "no evidence of extragenital
physical injury noted on the body of the Subject." 9 The genital examination yielded the following
findings on the victim:
Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both
coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately thick,
wide, intact. Hymenal orifice, annular, admits a tube 1.8 cms. in diameter with
moderate resistance. Vaginal walls, tight and rogusities, prominent. 10 (Emphasis
supplied.)
The report concluded that the hymenal orifice, about 1.8 cms. in diameter, was "so small as
to preclude complete penetration of an average-size adult penis in erection without
producing laceration." 11
Against the evidence submitted by the prosecution, the accused, in their defense, interposed alibi, ill
motive on the part of an "uncle" of the complainant, and insufficient identification.
Accused Agapito Quianola, a member of the Philippine National Police stationed at Naga, Cebu,
testified that it was his day-off on 05 March 1994. At about 8:30 a.m., he and his wife, Leticia, who
had just arrived in Naga from Cebu City, proceeded to the house of his parents in Panla-an,

Dumanjug, to attend to the construction of their unfinished house. Quianola helped Vidal Laojan
and Nicasio Arnaiz in cementing the kitchen floor of their house. The work was finished at around
11:00 o'clock in the evening. After Vidal and Nicasio had gone home, Quianola went to bed with his
wife around midnight until the following morning of 06 March 1994. He denied having been in the
company of his co-accused, Escuadro a.k.a. "Botiquil," at any time during the whole day and night of
05 March 1994. According to him, Guillermo Zozobrado, Catalina's brother-in-law, concocted the
rape charge to get even with him because of an incident in August 1993 at a fiesta dance in upper
Tangil, Panla-an, when George Camaso, the husband of his sister Jinga, got into trouble with
Samuel Escuadro. Quianola tried to pacify George Camaso who was then drunk but Camaso
suddenly hit him. He parried the blow and slapped Camaso on the face. Zozobrado joined the fray
and tried to hit Quianola but because Zozobrado was drunk, he stumbled when Quianola had
pushed him. 12 He admitted that he had no misunderstanding of any kind with the complainant and
her parents themselves.
Leticia Quianola the wife of accused Agapito Quianola, testified to attest to her husband's "good
moral character" and to corroborate his testimony. Leticia said that after the workers had left their
house at around midnight she and appellant talked for a while and then made love. Vidal Laojan
the carpenter was presented to state that Quianola was at home helping the carpenters until past
11 o'clock on the night of the incident. Nicasio Arnaiz a farmer and store cutter added that work in
the Quianola's house had started late in the morning of 05 March 1994 since they still waited for
Quianola and his wife Patsy to arrive. Work in the house, he said had stopped at about 11 o'clock
that night.
Accused Eduardo Escuadro a.k.a. "Botiquil" declared that at about seven o'clock in the evening of
05 March 1994 he and Pablito Cuizon, Jr., went fishing in Tangil Dumanjug Cebu until about ten
o'clock that evening. After partaking of supper at around 11:30 p.m., they had a drinking spree and
went to bed at 12:00 midnight waking up at 6:30 a.m. the following day. He denied having been in
the company of Quianola and insisted that the rape charge had been the result of a mere mistaken
identity. Pablito Cuizon, Jr., corroborated Escuadro's story about their being together up until they
parted company after a drinking spree.
The defense also presented the two police officers, PO2 William Beltran and SPO2 Liberato
Mascarinas, Jr., who took part in the investigation of the crime, and Margarito Villaluna, a suspect at
the early stages of the police investigation who was in the frequent company of the accused.
According to PO2 Beltran, barangay tanods Gilly and George Zozobrado reported the rape incident
to him at midnight of 05 March 1994. He entered the report in the "temporary blotter because the
suspect was unknown then." 13Accompanied by the two tanods, he went to the residence of the
victim and when he asked Catalina if she was able to recognize the malefactors, she kept silent and
continued crying. SPO2 Liberato Mascarinas, Jr., asserted that, in the early morning of 06 March
1994, Gilly and George Zozobrado went to the police station and named "Pitoy Quianola, Margarito
Villaluna and Batiquil or Escuadro" as being the suspects in the rape incident. While on their way to
the latter's respective residences, the team met Catalina Carciller and party who were themselves
about to repair to the police headquarters. Mascarinas asked Catalina about the identities of the
rapists. She named "Pitoy Quianola" but said she did not know the names of "the other persons"
although she could recognize them by face. Botiquil was later brought to the police station Pitoy
Quianola by that time had already gone to Naga. Margarito Villaluna declared that he had been in
Panla-an, Negros Oriental, from 05 March 1994 until 09 March 1994 until harvesting corn. His sister,
Mercy Villaluna testified that, in the morning of 06 March 1994, policemen in the company of
barangay tanods including Gilly Zozobrado and his son Marcelo, came to their house looking for her
brother Margarito. Shortly after the group had left, another policeman, in the company of one Erwin
Quirante also came looking for her brother. The arrival of the policemen prompted her to verify from
the Coast Guard whether her brother had indeed left for Negros Oriental. She was told that her

brother was in the boat that departed for Negros in early dawn of 02 March 1994. Still unsatisfied
with the result of her queries, Mercy went to Guinholngan where she met Margarito.
Following the trial and submission of the case for decision, the court
a quo, 14 on 01 March 1996, found the two accused guilty beyond reasonable doubt of the crime of
"frustrated rape" and sentenced them accordingly; thus:
WHEREFORE, premises considered, the Court hereby finds guilty beyond
reasonable doubt the two accused Agapito "Petoy" Quianola and Eduardo
Escuadro, alias "Batiquil", as principals by direct participation and indispensable
cooperation of the frustrated rape of the complaining witness Catalina "Cathy"
Carciller, and considering the attendance in the commission of the crime of the six (6)
aggravating circumstances aforementioned, not offset by any mitigating
circumstance, hereby sentences these two accused individually toReclusion
Perpetua of Forty (40) Years, plus all the accessory penalties prescribed by law, and
to pay the offended party civil indemnity in the amount of P50,000.00 each.
The Court also hereby recommends that under no circumstance should the two
accused be granted parole or conditional or absolute pardon, in view of the extreme
moral turpitude and perversity which they exhibited in the commission of the crime
not until they shall have served at least thirty (30) years of the full range of forty (40)
years of reclusion perpetuameted out against them in this case. They should be
interdicted for that length of time from the usual and normal liasons (sic) and dealings
with their fellowmen and their community so as to protect the latter from their
pernicious and insidious examples. This is the most generous and charitable
recommendation that the Court can make for these two malefactors, short of
imposing upon them the supreme penalty of death, which the Court in other times
and conditions might have been compelled, as a matter of inexorable duty, to mete
out against them, in obedience to the implacable and peremptory demands and
dictates of retributive justice.
Costs shall also be taxed against the two accused.
SO ORDERED. 15
The trial court ruled that the accused were liable for the crime of frustrated rape "with an eye to
extending to the two accused the benefit of the principle that in case of doubt criminal justice
naturally leans in favor of the milder form of penalty" 16 but that, because of the existence of "at least
six (6) aggravating circumstances, 17 not offset by any mitigating circumstance," 18the accused
should each be meted the penalty of reclusion perpetua. It explained:
Now, the crime of rape had it been consummated and had it been committed with the
attendance of the above-mentioned aggravating circumstances, with absolutely no
offsetting mitigating circumstances, ought to be punished with the mandatory penalty
of death under the pertinent provisions of Section 11 and 23 of Republic Act No.
7659, which amended Article 335 of the Revised Penal Code, and further amplified
the aggravating circumstances enumerated in Article 14 of the same code. But
because the crime committed here is "merely" frustrated rape for the reasons
heretofore discussed, attended by the aforementioned six aggravating
circumstances, not offset by even one mitigating circumstance, the proper penalty to
be imposed upon the two principals, the two accused herein, both co-conspirators,
by direct participation and indispensable cooperation, of the frustrated rape, should

be one degree lower than the indivisible afflictive penalty of death, which is also the
indivisible afflictive penalty of reclusion perpetua which, under Section 21 of the
amendatory statute, shall range from twenty years and one day to forty years. 19
In their appeal to this court, the two convicted accused interposed the following assignment of errors:
I. THE COURT ERRED IN DISREGARDING THE
INCONSISTENCIES OF THE PROSECUTION WITNESSES WHICH
IF THOROUGHLY CONSIDERED COULD HAVE ALTERED THE
DECISION IN FAVOR OF THE ACCUSED.
II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF
COMPLAINING WITNESS CARCILLER EVEN IF THE SAME WERE
CLOUDED WITH GRAVE INCONSISTENCIES.
III. THE COURT ERRED BY DISREGARDING THE TESTIMONIES
OF ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS.
IV. THE COURT ERRED IN REFUSING TO CONSIDER THE
REBUTTAL EVIDENCE OF DEFENSE WITNESSES EVEN IF THE
SAME WERE NOT CONTROVERTED.
V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO THE
TESTIMONIES OF THE POLICEMEN WHICH WERE
UNCONTROVERTED AND WITH PRESUMPTION OF
REGULARITY IN THE PERFORMANCE OF DUTIES.
VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY OF
FRUSTRATED RAPE AND SENTENCING THEM TO 40 YEARS
of RECLUSION PERPETUA. 20
In reviewing rape cases, this Court must again say that it has been continually guided by the
principles (a) that an accusation of rape can be made with facility; it is difficult to prove, but more
difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of
the crime which usually involves only two persons, the testimony of the complainant must be
scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall on
its own merits and cannot be allowed to draw strength from the weakness of the evidence of the
defense. 21 Expectedly, courts would scrupulously examine the testimony of the complainant with the
thought always in mind that the conviction of the accused would have to depend heavily on the
credibility of the offended woman. It is not much different in this instance for, at bottom, appellants
assail the credibility of the prosecution witnesses, particularly that of the complainant, in seeking a
reversal of the judgment of conviction.
The doctrine, then again, is that the findings of the trial court on credibility are entitled to highest
respect and will not be disturbed on appeal in the absence of any clear showing that the trial court
has "overlooked, misunderstood or misapplied facts or circumstances of weight and substance" that
could have consequential effects. The stringency with which appellate tribunals have observed this
rule is predicated on the undisputed vantage of the trial court in the evaluation and appreciation of
testimonial evidence. 22

In assailing Catalina's credibility, as against the assessment made by the trial court which has
described the victim's testimony to be impressed with "candor, spontaneity and naturalness,"
appellants theorize that the sexual intercourse, if indeed true, could have only been committed
against Catalina in a sitting position, contrary to her declaration of having been made to lie on the
ground because her T-shirt, marked Exhibit E, is "not tainted with mud at all especially the back if
she were made to lie down." 23The Court finds this so-called incongruity committed by the
complainant to a feeble attempt to discredit her testimony. The Court is convinced of the sexual
assault made against her. Here follows the testimony of Catalina on this score.
Q You said that you were forced by Agapito Quianola to sit down,
where were you forced to sit down, in what particular place or area?
A Just behind the back of the school.
Q You were forced to sit down on the ground?
A Yes.
Q In effect did you sit down as ordered by him?
A I resisted.
COURT:
Q How did you resist?
A I said I will not sit down.
TRIAL PROS. NAZARENO:
Q What did Agapito Quianola do, if any, when you resisted?
A He pointed his gun to me.
Q When he pointed a gun at you, referring to Agapito Quianola,
what did he say?
A He said that if I will not accede to what he wanted me to do and if I
will shout, he will kill me.
Q What did you do when you heard those words coming from Agapito
Quianola?
A I cried.
Q When you cried what did Agapito Quianola do, if any?
A He ordered Eduardo Escuadro to remove my pants and panty.
COURT

Q Why what were you wearing at that time?


A Pants.
Q What kind of pants?
A Denim.
TRIAL PROS. NAZARENO
Q Now, after Agapito Quianola ordered Eduardo Escuadro to
remove your pants and panty what did Eduardo Escuadro do, if any?
A He did what Agapito Quianola commanded him.
COURT:
Q How about you, what (sic) were you doing at that time?
A I cried and tried to free myself.
TRIAL PROS. NAZARENO
Q Now, when Eduardo Escuadro removed your pants and panty
where was Agapito Quianola and what did Agapito Quianola do?
A He unzipped his pants.
Q After that what happened?
In effect, were your pants and panty removed by Eduardo Escuadro?
A Yes.
Q Now, you said Agapito Quianola opened his fly or unzipped his
pants, when Agapito Quianola already unzipped his pants, what did
he do?
A He approached me and lay on top of me.
Q When Agapito Quianola approached you and laid on top of you,
what did Eduardo Escuadro do?
A He was holding on to my legs.
Q Then what happened after that?
A Agapito Quianola started to pump, to push and pull.

Q What did you do when Agapito Quianola was already on top of


you and made a push and pull on you?
A I struggled to free myself.
Q After that what happened when Agapito Quianola was already on
top of you and kept on making a push and pull?
A Eduardo Escuadro took his turn.
Q What do you mean by took his turn, please specify what did
Escuadro do? He did what Agapito had just done to you?
COURT:
Q What did Agapito Quianola do to you actually?
A He lay on top of me and did a push and pull movement.
TRIAL PROS. NAZARENO:
Q When Agapito Quianola lay on top of you and made a push and
pull movement, do you mean to say that he inserted his penis into
your vagina?
A I felt something hard on the lips of my genitals.
Q What is this something hard that you felt that touched the lips of
your vagina or vulva?
A His organ or penis.
Q When Agapito Quianola unzipped his pants, did you see his
penis?
A Yes.
Q You also said that Eduardo Escuadro took his turn and laid on top
of you and made a push and pull on you, specifically what did
Eduardo Escuadro do?
A The same as Agapito did, he was doing the push and pull
movement.
Q What did you feel when Eduardo Escuadro was already on top of
you and made a push and pull on you?
A I held my breath.
Q Did you see the penis Eduardo Escuadro?

A No.
Q Now, did you feel that the penis of Escuadro inserted into your
vagina?
A I felt it on the lips of my vulva. 24
The fact that she must have been lying down when violated has even more been made clear
by the defense on cross-examination. Thus:
Q Did you say any testimony in the direct that you were on the
ground at the time when you were raped by these two accused?
A They pointed a gun at me and ordered me to lie down.
Q Lie on the ground?
A Yes. 25
And on why her T-shirt was no longer soiled with mud when presented in court, Catalina creditably
explained that when it was offered in evidence, she had already dusted and rid it of grass particles.
At all events, whether appellants spent their lust on Catalina in a sitting position or lying down would
not be of any real moment for what remained clear, established rather convincingly by the
prosecution, was that appellants had forced carnal knowledge of the victim.
The reliance being made by appellants on the affidavit of Catalina in order to discredit her is likewise
futile. The Court has consistently ruled that discrepancies between the statement of an affiant in an
affidavit and those made on the witness stand do not necessary downgrade testimonial evidence. Ex
parte affidavits are usually incomplete and frequently prepared by an administrating officer and cast
in the latter's language and understanding of what the affiant has said. Quite frequently, the affiant
would simply sign the affidavit after it has been read to him or to her. 26
Not much differently could be said of Catalina's identification of appellants as being her ravishers.
On the witness stand, Catalina explained that while she gave appellant Escuadro's nickname
"Botiquil" to the investigating police officer, the latter did not mention that name in the affidavit
because, according to the officer, the affidavit was merely a "shortcut". In her testimony, she was
categorical that she had known appellants even before the rape incident. She knew that appellant
Quianola was a policeman and a "popular maldito" (nasty) in the locality. 28 Catalina knew that
appellant Escuadro, a resident of Punla-an far from her own abode, was commonly known as
"Batiquil" (Botiquil). She could not have been mistaken in the identification of the culprits since
appellants themselves held a flashlight which they used that added to the illumination shed by a
fluorescent lamp and two bulbs on the side of a house only some meters away.
As regards the allegation of appellants that the testimony of Catalina contradicted in certain respects
that of prosecution witness Rufo Ginto, suffice it to say that the testimony of Rufo Ginto (who was
noted by the trial court not to be "an intelligent witness" 29) was merely corroborative in nature and
neither dealt with the actual commission of the crime nor delved on material points.
Catalina's candid and straightforward narration of the two sexuals assaults perpetrated on her on the
night of the incident unmistakably deserves credence. It is unbelievable that a young barrio lass
would concoct a tale of defloration publicly admit having been ravished and her honor tainted allow

the examination of her private parts, and undergo all the trouble and inconvenience not to mention
the trauma and scandal of a public trial had she not in fact been raped and truly moved to protect
and preserve her honor as well as to obtain justice, for the wicked acts committed against
her. 30 There is no plausible reason why Catalina should testify against appellants, imputing upon
them so grave a crime as rape if it did not happen. This Court has consistently held that where there
is no evidence to show any dubious reason or improper motive why a prosecution witness should
testify falsely against the accused or implicate him in a serious offense, the testimony deserves faith
and credit. 31 So, also, the Court has repeatedly said that the lone testimony of the victim in a rape
case, if credible, is enough to sustain a
conviction. 32
The positive identification of appellants as being the perpetrators of the crime effectively effaces their
alibi. 33 The rule is that affirmative testimony is far weightier than a mere denial, especially when it
comes from the mouth of a credible witness. 34 Moreover, alibi might be aptly considered only when
an accused has been shown to be in some other place at the crucial time and that it would have
been physically impossible for him to be at the locus criminis or its immediate vicinity at the time of
the commission of the crime. 35
In the context it is used in the Revised Penal Code, "carnal knowledge" unlike its ordinary
connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that
the vagina be penetrated or that the hymen be ruptured. 36 The crime of rape is deemed
consummated even when the man's penis merely enters the labia or lips of the female organ 37 or, as
once so said in a case, by the "mere touching of the external genitalia by a penis capable of
consummating the sexual act." 38 In People vs. Escober, 39 in convicting a father of having raped
twice his 1l-year-old daughter, the Court has said:
While the evidence may not show full penetration on both occasions of rape the
slightest penetration is enough to consummate the offense in fact there was vulva
penetration in both cases. The fact that the hymen was intact upon examination does
not belie rape for a broken hymen is not an essential element of rape not does the
fact that the victim has remained a virgin negate the crime. What is fundamental is
that the entrance of at least the introduction, of the male organ into the labia of the
pudendum is proved. As in the case at bar it can be said that there was penetration
although incomplete, and it was sufficient to prove carnal knowledge of a child under
twelve years of age. A medical examination is not an indispensable element in a
prosecution for rape. The accused may be convicted on the sole basis of
complainant's testimony of credible and the findings of the medico-legal officer do not
disprove the commission of rape.
There are half measures or even quarter measures nor is their gravity graduated by
the inches of entry. Partial penile penetration is as serious as full penetration. The
rape is deemed consummated in either case. In a manner of speaking, bombardment
of the drawbridge is invasion enough even if the troops do not succeed in entering
the castle. 40(Emphasis supplied.)
In another case, People vs. Gabayton, 41 where the accused has been found guilty of raping
his daughter then less than twelve years old, the Court has observed:
Accused appellant draws attention to the fact that based on the medico-legal
findings, there is no showing that his daughter's hymen was penetrated, nor was
there any evidence of injuries inflicted. However, jurisprudence is well-settled to the
effect that for rape to be consummated, rupture of the hymen is not necessary, nor is

it necessary that the vagina sustained a laceration especially if the complainant is a


young girl. The medical examination merely stated that the smallness of the vaginal
orifice only precludes COMPLETE penetration. This does not mean that rape has not
been committed. The fact that there was no deep penetration of the victim's vagina
and that her hymen was intact does not negate rape, since this crime is committed
even with the slightest penetration of a woman's sex organ. Presence of a laceration
in the vagina is not an essential prerequisite to prove that a victim has been raped.
Research in medicine even points out that negative findings are of no significance,
since the hymen may not be torn despite repeated coitus. In fact, many cases of
pregnancy have been reported in women with unruptured hymen. Entry of the labia
or lips of the female organ merely, without rupture of the hymen or laceration of the
vagina, is sufficient to warrant conviction. What must be proven in the crime of rape
is merely the introduction of the male organ into the labia of the pudendum and not
the full penetration of the complainant's private part. As we held in Baculi: "there
could still be a finding of rape even if despite the repeated intercourse over a period
of four years the complainant still retained an intact hymen without signs of injury." In
the case at bench, Summer's testimony has established without a doubt that
accused-appellants organ managed to come into contact with her vagina, enough to
cause her pain. 42 (Emphasis supplied.)
In its recent holding in People vs. Echegaray, 43 the Court has declared that "a mere knocking
at the doors of the pudenda, so to speak, by the accused's penis suffices to constitute the
crime of rape as full entry into the victim's vagina is not required to sustain a conviction."
The trial court appellants only frustrated rape, ruled that there was no "conclusive evidence of
penetration of the genital organ of the offended party 44 in the (a) Catalina had admitted that she did
not spread her legs and (b) the medico-legal officer's findings showed she did not sustain any
extragenital injuries and her hymenal orifice was so small that an erect average-size penis would not
have completely penetrated it would causing laceration. It would seem that the trial court failed to
consider Catalina's testimony in its entirely she testified:
Q And when he mounted on top of you Escuadro was holding on to
your two feet and all the time that he Quianola, was making a push
and pull on you Escuadro was holding on to your two feet?
A Yes.
COURT:
Q Your two feet?
A Yes.
ATTY. CREEP:
Q Now in other words since your two feet were held and Eduardo
Escuadro was waving (sic [moving]) slightly to your left as you
demonstrated your two feet became closer to each other, it could not
be spread?

A I was still struggling at that time to free myself and I do not know
whether my legs were speared out or not.
Q Did you spread your legs?
A No.
Q Since you did not spread your legs and Quianola was on top of
you, did you not bother to pull your legs, kick the one holding it and
pushed Quianola or do any harm to him?
A No, because I was already frightened considering that there were
two of them and they were armed. 45
This testimony would indicate that Catalina, considering her struggle to free herself,
understandably failed to notice whether her legs were spread apart or close together during
her ordeal. What she did distinctly recall, however, was that Escuadro had kept holding both
her legs when Quianola took her. Thus
Q At that time when he unzipped and your hands were free, did you
not attempt to hold his penis forcibly so that he will refrain from raping
you?
A I was not able to think of that because of my fear and besides that
Eduardo Escuadro was holding on to both my legs.
Q Now if Eduardo Escuadro was the one holding on both your two
legs how was Quianola able to place himself on top of you?
A It was because Eduardo Escuadro had already released my hands
and Quianola was the one holding on to it already, afterwards
Eduardo Escuadro transferred to hold both my legs. 46
Let it be said once again that, as the Revised Penal Code presently so stands, there is no such
crime as frustrated rape. In People vs. Orita, 47 the Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of
his victim, he actually attains his purpose and, from that moment also all the
essential elements of the offense have been accomplished. Nothing more is left to be
done by the offender, because he has performed the last act necessary to produce
the crime. Thus, the felony is consummated. In a long line of cases (People vs.
Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R.
No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996,
August 21, 1974, 58 SCRA 505). We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no penetration of the female
organ (People vs. Tayaba, 62 Phil. 559, People vs. Rabadan, et al., 53 Phil. 694;
Unites States vs. Garcia, 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a felony directly by

overt acts. Taking into account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People vs.
Eriia, 50 Phil. 998 [1927] where, We found the offender guilty of frustrated rape
there being no conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a "stray" decision inasmuch as it has
not been reiterated in Our subsequent decisions. Likewise, We are aware of Article
335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which
provides, in its penultimate paragraph, for the penalty of death when the rape is
attempted or frustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated rape is a
dead provision. The Eriia case, supra, might have prompted the law-making body to
include the crime of frustrated rape in the amendments introduced by said laws. 48
The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal
Code, has retained the provision penalizing with reclusion perpetua to death an accused who
commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress
sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued
usage in the statute book as being merely a persistent lapse in language.
Each appellant is liable for two counts of consummated rape on account of a clear conspiracy
between them shown by their obvious concerted efforts to perpetrate, one after the other, the crime.
Each of them therefore is responsible not only for the rape committed personally by him but also for
the rape committed by the other as well. 49
Under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 when rape is
committed with the use of a deadly weapon or by two persons, the crime is punishable by reclusion
perpetuata to death. Even while the information has failed to allege the use of a deadly weapon in
the commission of the rape, appellants can, nonetheless, be held accountable under that provision
since the information has likewise averred that the "above-named accused," referring to the two
appellants, have conspiratorially committed the crime.
Article 14 of the Revised Penal Code, 50 includes among its enumeration of generic aggravating
circumstances the fact that the crime is committed with the aid of armed men or persons who insure
or afford impunity. The fact alone, then, that a malefactor has sported a firearm does not, by itself,
militate to aggravate crime. As regards appellant Quianola, the aggravating circumstance of his
being a member of the Philippine National Police would have exposed him to the penalty of
death 51under the amendatory provisions of Article 335 by Republic Act No. 7659, had this
circumstance been properly alleged in the information. The description by the trial court of appellants
as being "powerfully, built, brawny and mean-looking" as against the "short slender easily cowed"
15-year-old victim would not here warrant a finding that abuse of superior strength has aggravated
the commission of the crime. The law should be deemed to have already considered this
circumstance in qualifying the crime to its "heinous" character rendering in that context abuse of
superior strength has an inherent element thereof. Neither may nighttime be considered an
aggravating circumstance in the absence of proof of its having been deliberately sought out by
appellants to by appellants to facilitate the commission of the offense. 52 Craft fraud or disguise 53 is a
species of aggravating circumstance that denotes intellectual trickery or cunning resorted to by an
accused to aid in the execution of his criminal design or to lure the victim into a trap and to conceal
the identity of the accused. The fact that one of the appellants has pretended to be a member of the

New People's Army does not necessarily imply the use of craft, fraud or disguise, in the commission
of the crime Finally, the Court does not subscribe to the view of the trial court that accusedappellants have employed means which added ignominy to the natural effects of the crime,
particularly in "stripp(ing) the victim of her denim parts and panties and then sending her home in
this humiliating and distressing condition. 54 There is nothing on record that even remotely suggests
that accused-appellants so deliberately sought to leave Catalina with bottoms bare that she might be
left alone in shame with only her T-shirt and brassieres on.
The absence of any aggravating circumstance in the commission of a crime punishable by two (2)
indivisible penalties, such as reclusion perpetua to death would justify even without any mitigating
circumstance, the imposition of the lesser penalty of reclusion perpetua.
The trial court has ordered appellants to each pay the offended party and indemnity in the amount of
P50,000.00. Prevailing jurisprudence 55 likewise allows the victim is have an award of moral
damages for having evidently undergone mental physical and psychological sufferings. The
availability of appellants being on delict is solidary. 56
WHEREFORE, appellants Agapito Quianola y Escuadro and Eduardo Escuadro y Floro are each
found guilty beyond reasonable doubt of two (2) counts of consummated rape and accordingly,
sentenced to the penalty of reclusion perpetua in each case. Said appellants are ordered to pay
jointly and severally Catalina Carciller the sum of P100,000.00 by way of indemnity ex delictu for the
two counts of consummated rape plus P60,000.00 moral damages. Costs against appellants.
1wphi1.nt

G.R. Nos. 141724-27

November 12, 2003

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
ARNULFO ORANDE y CHAVEZ, Appellant.
DECISION
CORONA, J.:
This is an appeal from the decision1 of the Regional Trial Court of Manila, Branch 18, in Criminal
Case Nos. 97-159184, 97-159185, 97-159186 and 97-159187, convicting appellant for two counts of
simple rape, one count of statutory rape and one count of frustrated rape, and sentencing him to

suffer three counts of reclusion perpetua for the simple and statutory rapes, and an indeterminate
penalty of 8 years to 14 years and 8 months of imprisonment for the frustrated rape.
Complainant Jessica Castro charged appellant with raping her four times between January 1994 and
November 1996. The informations filed against appellant by the City Prosecutor read:
In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to
kill said Jessica Castro, had carnal knowledge of the latter against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159185That on or about April 15, 1994, in the City of Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening
JESSICA CASTRO Y DE LA CRUZ of death should she resist or report the matter to anybody, had
carnal knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159186 That on or about March 12, 1995, in the City of Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening
Jessica Castro y de la Cruz of death should she resist or report the matter to anybody, had carnal
knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159187That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then
and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by
threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will.
CONTRARY TO LAW.2
Arraigned on September 5, 1997, appellant pleaded not guilty.3 Thereafter, trial on the merits
ensued. However, the trial was subsequently postponed for eight months as Jessica was suffering
from psychological and emotional trauma from her horrifying ordeal.4 The lower court ordered the
suspension of the trial to enable her to undergo psychological therapy at the Child Protection Unit of
the Philippine General Hospital. Trial resumed in November 1998 with the prosecution presenting
Jessica as its first witness.
Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against
her mother, Girlie de la Cruz Castro, and the appellant for child abuse.

The evidence of the prosecution showed that appellant was the common law husband of Jessicas
mother Girlie. Appellant, a pedicab driver, started living with Girlie and her three children sometime in
1993 in a two-storey house in Paco, Manila owned by Girlies mother. They occupied a room on the
ground floor which served as their bedroom, kitchen and living room. The adjacent room was
occupied by Girlies brother and his family while the room on the second floor was occupied by
Girlies sister and her family.
Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco
Market, buying her stock from the Navotas fish market late at night and sometimes in the early hours
of the morning.
The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994
when Girlie was at the fish market. Appellant was left in the house with Jessica, her siblings and
appellants two children with Girlie. Jessica was then watching television while her brothers and
sisters were sleeping beside her. Appellant grabbed Jessicas right hand and lasciviously jabbed her
palm with his finger. He ordered her to undress which she obeyed out of fear as appellant was
armed with a knife. Appellant then removed his pants, placed himself on top of complainant and
succeeded in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood
and semen. She tried to leave the room but appellant locked the door and threatened to kill her if
she told her mother what happened. Jessica was then only nine years and four months old, having
been born on December 19, 1983.5
The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around
11:00 a.m. when Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and
her siblings were left in the house watching television. Soon after, appellant arrived and sent the
children, except Jessica, to play outside. Left alone with Jessica, appellant removed his clothes,
pulled out a balisong and ordered Jessica to undress. He then held her by the shoulder and made
her lie down. Then he mounted her. Appellant reached his orgasm shortly after penetrating her
slightly. He stood up with semen still dripping from his penis. Apparently still not satisfied, he knelt
down, kissed and fingered Jessicas vagina, then mashed her breasts. He only stopped what he was
doing when someone knocked at the door. Appellant and Jessica hurriedly put on their clothes and,
as appellant opened the door, Jessica went to the bathroom to wash herself.
The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996, when
Jessica was 12 years and 6 months old. She arrived from school at around 11:00 a.m. While she
was changing her clothes, appellant ordered Jessicas brother and sister to visit their mother at the
Paco Market and sent his children to play outside the house. When appellant and Jessica were
alone, he removed his pants, got his knife and ordered her to undress. Since she was afraid, Jessica
was forced to remove her clothes. Appellant then told her they would do what they did before, pulled
her towards him and made her lie down on the floor. While holding the knife, he kissed and fingered
her vagina, then mashed her breasts. Thereafter, he placed himself on top of her, partially
penetrated her until he ejaculated. When Jessicas brother and sister arrived, appellant hurriedly put
on his clothes. Jessica did the same. She then went to the bathroom to wash herself and change her
bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at
around 11:00 p.m. Girlie was again in the public market while Jessica was at home with her siblings
who were all asleep. Appellant told Jessica that they would again do what they did before but she
refused, saying that she might get pregnant. Appellant brandished his balisong and threatened to kill
her. He then covered himself and Jessica with a blanket, removed his pants and her shorts, and
placed himself on top of her. His penis slightly penetrated her vagina. He mashed her breasts,
inserted his finger into her vagina and kissed it. Jessica pushed him away and told him she wanted

to sleep. Then she put on her shorts. Appellant also put on his pants and told Jessica not to tell her
mother what he did to her. He assured her that she would not get pregnant because she was not yet
menstruating.
Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual
treatment of Jessica by appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant
had raped her several times. Mrs. Mojica called up Jessicas aunt, Mrs. Antonina de la Cruz, and
narrated to her what Jessica had confessed. Mrs. De la Cruz then accompanied Jessica to the
police station to file a complaint and to the Philippine General Hospital (PGH), Child Protection Unit,
to be examined. Dr. Bernadette J. Madrid, Director of the Child Protection Unit, examined Jessica
and the findings revealed the following:
Genital Examination:
Hymen: Estrogenized,
Attenuated from 1 oclock position to 4 o clock position
and from 6 o clock to 12 o clock position
Notch at 5 oclock
Healed hymenal tear at the 6 o clock position
Anus: Normal rectal tone, no pigmentation, no scars, normal rugae 6
For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified
that, during the alleged second rape incident, he was driving his pedicab. His live-in partner Girlie
testified that, during the purported first and second incidents of rape, appellant was with her to buy
fish in Navotas and sell them in Paco market. Appellant argued that since Jessica disapproved of his
relationship with her mother, she had the motive to falsely accuse him of raping her. Further, he
pointed out the improbability of the alleged first and fourth incidents of rape inasmuch as the makeup of the room made it impossible for Jessicas siblings not to wake up during the commission of the
crime. Appellant further contended that Jessicas failure to cry out for help, knowing that her mothers
relatives were in the same house, made her story of rape unbelievable.
The trial court gave credence to the testimony of Jessica and convicted the appellant:
WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y Chavez is convicted of
simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of
reclusion perpetua with all the accessory penalties provided by law.
In Criminal Case No. 97-159185, the accused is also convicted of simple rape under Article 335 of
the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law.
In Criminal Case No. 97-159186, the accused is likewise convicted of statutory rape under Article
335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law.

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the
Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor
as minimum to 14 years and 8 months of reclusion temporal as maximum, and to pay the costs.
On the civil liability of the accused in the four cases, he is ordered to pay the victim, Jessica Castro,
moral, nominal and exemplary damages in the respective sums of P400,000.00, P200,000.00 and
P100,000.00.
SO ORDERED.7
In this appeal, appellant assigns the following errors:
I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF ONE COUNT OF STATUTORY RAPE, ONE
COUNT OF FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE.
II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT
OF FRUSTRATED RAPE DESPITE THE FACT THAT UNDER PREVAILING
JURISPRUDENCE THERE IS NO SUCH CRIME.8
The Office of the Solicitor General argues that appellants convictions should be upheld as the
prosecution was able to prove his guilt beyond reasonable doubt.
The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond
reasonable doubt appellants guilt for two counts of statutory rape and two counts of simple rape,
there being no such crime as frustrated rape in this jurisdiction.
After a thorough review of the records, we find no reason to deviate from the well-established rule
that the credibility of witnesses is a matter best assessed by the trial court because of its unique
opportunity to observe them firsthand and to note their demeanor, conduct and attitude. 9 In the
present case, the trial court found Jessicas testimony convincing, logical and credible. Moreover, the
court a quo:
xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and
bitterness she suffered whenever she was asked to recall and narrate the humiliating sexual ordeals
she had gone through, and her ... desire for justice and the punishment of her defiler. She was
continually in tears while testifying and the proceeding was interrupted several times to calm her
down.10
No young woman would allow an examination of her private part and subject herself to the
humiliation and rigor of a public trial if the accusations were not true, or if her motive were other than
a fervent desire to seek justice.11
We do not subscribe to appellants theory that the filing of the rape charges was motivated by
Jessicas dislike for him. To charge appellant with rape for the sole purpose of exacting revenge, as
appellant implies in his brief, takes a certain kind of psychiatric depravity which this Court does not
see in Jessica. The fact that Jessica had to undergo psychological treatment 12 after her first
testimony in February 1998 belies appellants defense. The need for such counseling came about
after the defilement she suffered in the hands of appellant. In fact, it was the incidents of rape that
caused her psychological and emotional imbalance which required therapy at the Child Protection
Unit of the Philippine General Hospital.

The alleged inconsistencies and improbabilities in Jessicas testimony did not discredit her nor
reveal any fabrication. Inconsistencies regarding minor details were attributable to the fact that she
was recalling details of incidents that happened three years before, not to mention the fact that these
details pertained to something she had very little knowledge of, being then only nine years and three
months old when the first rape was committed. We have consistently ruled that errorless recollection
of a harrowing experience cannot be expected of a witness (a very young one at that) specially when
she is recounting details of an occurrence so humiliating, so painful and, in this case, so alien as
rape.13
Appellant makes much of the fact that two incidents of rape happened inside the room where the
other children were sleeping. This Court has repeatedly held that rape can be committed in the same
room where other members of the family are also sleeping, in a house where there are other
occupants or even in places which to many might appear unlikely and high-risk venues for its
commission.14
Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical
proximity of her relatives, or to report to them what happened, did not at all make her testimony
improbable inasmuch as it is not uncommon for a young girl of tender age to be easily intimidated
into silence and conceal for sometime the violation of her honor, even by the mildest threat to her
life.15 Besides, Girlie, Jessicas mother, had a rift with her siblings who lived in the same house and
forbade Jessica to socialize with them. It was likewise highly probable that the strained relations
between Jessicas mother, uncle and aunt prevented Jessica from confiding in them.
In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the
crime does not necessarily detract from the witness credibility as long as it is satisfactorily
explained.16 Jessica was threatened by appellant that he would kill her mother and relatives if she
reported the rape. A young girl like Jessica can easily be mesmerized by fear of bodily harm and,
unlike a mature woman, cannot be expected to have the courage or confidence to immediately
report a sexual assault on her, specially when a death threat hangs over her head. 17
In view of the credible testimony of Jessica, appellants defenses of denial and alibi deserve no
consideration. These weak defenses cannot stand against the positive identification and categorical
testimony of a rape victim.18
The court a quo convicted appellant of one count of frustrated rape in Criminal Case No. 97-151987,
the dispositive portion of which read:
xxx

xxx

xxx

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the
Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor
as minimum, and to pay the costs.
xxx

xxx

xxx

SO ORDERED.19
However, we agree with the observation of the Solicitor General that the court a quo was referring to
Criminal Case No. 97-159185, and not Criminal Case No. 97-159187, in convicting appellant of
frustrated rape:

The trial court convicted appellant of simple rape in Criminal Case No. 97-159185. However, the
factual basis thereof in the body of the decision reads:
With regard to Criminal Case No. 97-159185, the Court has gathered that sometime in April, 1994, at
around 11:00 p.m., Jessica and her two siblings together with the accused were in their house, while
their mother, Girlie, was in Navotas buying fish. Jessica was watching TV in a lying position beside
her two sleeping siblings, when the accused held Jessicas right hand and jabbed her palm with his
finger. Then he told her to remove her short pants, panty and T-shirt, after which the accused
removed his pants and with a balisong in his hand, he began kissing the sensitive parts of her body.
Then he placed himself on top of her and tried to have sexual intercourse with her. He succeeded in
nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the
resistance offered by her by struggling and kicking him. Nonetheless, the accused had orgasm and
Jessicas sex organ was smeared with his semen. (emphasis supplied, p. 2, Decision)
Such was the only rape incident where the trial court concluded there was no penetration.
On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of
the trial courts decision reads:
Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around
11:00 p.m., Jessica was watching TV while the other siblings were asleep and her mother was away,
when accused again made sexual advances to her. She resisted and told accused she might
become pregnant, but the accused persisted and threatened to kill her at that very moment if she
would not submit to his lust. As in the previous occasions, he again succeeded in having carnal
knowledge of the helpless and scared victim. After her defilement, the victim continually cried and
the accused tried to calm her down by assuring her that she would not be impregnated, because she
has not yet began to have menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described
in Criminal Case No. 97-159185 and not Criminal Case No. 97-159187 since this case refers to the
November 1996 rape incident where the findings of the trial court was that there was carnal
knowledge.20
Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97159187 is further evidenced by the following paragraph found in page four of the trial court decision:
In Criminal Case 97-159185 and 97-159184, the acts of the accused in having carnal knowledge of
the victim by intimidation on two separate occasions in [the] early or middle part [of] 1996, and in
November of the same year, constitute two separate crimes of qualified rape under R.A. 7659 and
the penalty prescribed therefore is death by lethal injection.21 (Emphasis Ours)
The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and
97-159187, as borne out by the informations filed by the City Prosecutor.22 Thus, the conviction for
frustrated rape should pertain to Criminal Case No. 97-159185 and not Criminal Case No. 97159187.
Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains
appellants contention that there is no such crime as frustrated rape, as we have ruled in a long line
of cases.23 Recently, in People vs. Quinanola,24 we again reiterated the rule:

Let it be said once again that, as the Revised Penal Code presently so stands, there is no such
crime as frustrated rape. In People vs. Orita, the Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long
line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996,
August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of
the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration
of the female organ (People vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al., 53 Phil. 694;
United States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender
merely commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a stray
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriia case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.
The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal
Code, has retained the provision penalizing with reclusion perpetua to death an accused who
commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress
sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued
usage in the statute book as being merely a persistent lapse in language. (emphasis ours)
Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful
review of the records, we find that the rape was in fact consummated. Jessica initially testified that,
although appellant did not succeed in inserting his penis in her vagina, she felt his sex organ touch
hers and she saw and felt semen come out of his penis and smear her vagina. 25 In response to the
clarificatory questions asked by the prosecutor, Jessica testified that the appellant was able to
slightly penetrate her because she felt pain and her vagina bled.26It has been held that, to be
convicted of rape, there must be convincing and sufficient proof that the penis indeed touched the
labia or slid into the female organ, and not merely stroked the external surface
thereof.27Nevertheless, we have also ruled in cases where penetration is not established that the
rape is deemed consummated if the victim felt pain, or the medico-legal examination finds
discoloration in the inner lips of the vagina, or the labia minora is already gaping with redness, or the
hymenal tags are no longer visible.28 In the present case, the victim testified that she felt pain and
her vagina bled, indisputable indications of slight penetration or, at the very least, that the penis
indeed touched the labia and not merely stroked the external surface thereof. Thus, the appellant
should be found guilty of (consummated) rape and not merely frustrated or attempted rape.

Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if
rape is committed when the victim is under 18 years of age and the offender is the common-law
spouse of the parent of the victim. However, the trial court was correct in not imposing the death
penalty in Criminal Case Nos. 97-159184 and 97-159187 because the qualifying circumstances of
age and relationship of the victim to the appellant were not alleged in the information. 29 Thus,
appellant can only be convicted of simple rape punishable by reclusion perpetua under Article 335 of
the Revised Penal Code. However, in Criminal Case Nos. 97-159185 and 97-159186, the appellant
can be convicted of statutory rape also punishable by reclusion perpetua under Article 335 of the
Revised Penal Code inasmuch as the age of Jessica was alleged in the information 30 and duly
proven during the trial by the presentation of her birth certificate. 31
We award moral damages of P50,000 for each count of rape as moral damages are automatically
awarded to rape victims without need of pleading or proof. 32 We also award civil indemnity ex delicto
of P50,000 for each count of rape in the light of the ruling that civil indemnity, which is distinct from
moral damages, is mandatory upon the finding of the fact of rape.33 We likewise award exemplary
damages of P25,000 for each count of rape consistent with the prevailing jurisprudence on the
matter.34
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos.
97-159 184 to 87 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. 97-159 184, appellant is convicted of simple rape under Article 335
of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is convicted of statutory rape under Article 335
of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is convicted of statutory rape under Article 335
of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
4. In Criminal Case No. 97-159187, appellant is convicted of simple rape under Article 335 of
the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral
damages, P50,000 as civil indemnity and P25,000 as exemplary damages, or a total of P500,000.
Costs against appellant.

G.R. No. 188979

September 5, 2012

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.
DECISION
BRION, J.:
This is an appeal from the June 15, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR HC
No. 02759. TheCA affirmed the February 22, 2007 decision2

of the Regional Trial Court (RTC), Branch 209, Mandaluyong City, finding appellant Christopher
Pareja guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty
of reclusion perpetua.
THE CASE
The prosecution charged the appellant before the RTC with the crime of rape under an Amended
Information that reads:
That on or about the 16th day of June 2003, in the City of Mandaluyong, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously lie and have carnal knowledge of AAA,3 13 years of age, sister of the
common law spouse of accused, against her will and consent, thus debasing and/or demeaning the
intrinsic worth and dignity of the victim thereby prejudicing her normal development as a child. 4
The evidence for the prosecution disclosed that at around 3:30 a.m. of June 16, 2003, AAA was
sleeping beside her two-year old nephew, BBB, on the floor of her sisters room, when the appellant
hugged her and kissed her nape and neck.5 AAA cried, but the appellant covered her and BBB with a
blanket.6 The appellant removed AAAs clothes, short pants, and underwear; he then took off his
short pants and briefs.7 The appellant went on top of AAA, and held her hands. AAA resisted, but the
appellant parted her legs using his own legs, and then tried to insert his penis into her vagina. 8 The
appellant stopped when AAAs cry got louder; AAA kicked the appellants upper thigh as the latter
was about to stand up. The appellant put his clothes back on, and threatened to kill AAA if she
disclosed the incident to anyone. Immediately after, the appellant left the room. 9 AAA covered herself
with a blanket and cried.10
At around 6:00 a.m. of the same day, AAAs brother, CCC, went to her room and asked her why she
was lying on the floor and crying. AAA did not answer, and instead hurled invectives at CCC. 11 AAA
went to the house of her other brother, but the latter was not in his house. AAA proceeded to the
house of her older sister, DDD, at Block 19, Welfareville Compound, and narrated to her what had
happened. Afterwards, AAA and her two (2) siblings went to the Women and Childrens Desk of the
Mandaluyong City Police Station and reported the incident. 12
For his defense, the appellant declared on the witness stand that he hauled "filling materials" at his
house, located at Block 38, Fabella Compound, on the evening of June 15, 2003. At around 10:00
p.m., he went to his room and slept.13 On the next day, the appellant, accompanied by his mother
and brother-in-law, went to the municipal hall to ask for financial assistance for his wife who was
confined in the hospital. Upon arrival at the hospital, the doctor told him that his wife needed blood.
Immediately after, the appellant and his companions went to Pasig City to find blood donors. 14
On the evening of June 16, 2003, and while the appellant was folding the clothes of his son, two
policemen entered his house and informed him that a complaint for attempted rape had been filed
against him. The police brought him to the Criminal Investigation and Detection Group, forced him to
admit the crime, mauled him, and then placed him in a detention cell. 15 The appellant added that he
filed a complaint before the Office of the Ombudsman against the police officers who beat him up. 16
The RTC convicted the appellant of rape in its decision of February 22, 2007, under the following
terms:
WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y VELASCO GUILTY beyond
reasonable doubt of the crime of RAPE and hereby sentences him as he is hereby sentenced to

suffer the penalty of reclusion perpetua; and to indemnify the victim, AAA, the amount of P 50,000.00
as moral damages and P 50,000.00 as civil indemnity.17
The CA, in its decision dated June 15, 2009, affirmed the RTC decision. It explained that a slight
penetration of the labia by the male organ is sufficient to constitute rape, and held that a slight
penetration took place when the appellants penis touched AAAs vagina as he was trying to insert it.
The appellate court further ruled that the presence of people in the other room did not make it
impossible for the appellant to have raped the victim, because lust is no respecter of time and place.
It also held that the victims lack of tenacity in resisting the appellants sexual aggression did not
amount to consent or voluntary submission to the criminal act. 18
In his brief,19 the appellant argued that the lower courts erred in convicting him for the crime of rape,
as the prosecution failed to prove even the slightest penetration of his penis into the victims vagina.
He added that the victims testimony was incredible and contrary to human experience.
THE COURTS RULING
We find that the prosecution failed to prove the appellants guilt beyond reasonable doubt of the
crime of consummated rape. We convict him instead of attempted rape, as the evidence on record
shows the presence of all the elements of this crime.
Carnal Knowledge Not Proven With
Moral Certainty
By definition, rape is committed by having carnal knowledge of a woman with the use of force, threat
or intimidation, or when she is deprived of reason or otherwise unconscious, or when she is under
12 years of age or is demented.20 "Carnal knowledge is defined as the act of a man having sexual
intercourse or sexual bodily connections with a woman."21 Carnal knowledge of the victim by the
accused must be proven beyond reasonable doubt, considering that it is the central element in the
crime of rape.22
In her testimony of February 9, 2004, AAA recounted the alleged rape, as follows:
FISCAL TRONCO:
Q: You said that the three of you then was (sic) sleeping on the floor, what is it that happened on
that particular day and time that is unusual?
A: It was like somebody was embracing me or hugging me, maam.
Q: When you felt that some (sic) is embracing and hugging you, what did you do?
A: I didnt mind it because I thought that the person beside me just moved and when he made the
movement, its like that I was embraced, maam.
Q: Whom are you referring to?
A: My brother-in-law, maam.
Q: And after that, what else happened, if any, AAA?
A: Before that happened, my nephew cried and so I picked him up and put him on my chest and
after a while, I slept again and brought him down again and then "dumapa po ako" and I felt that
somebody was kissing my nape, maam.
Q: Were you able to see who was that somebody kissing your nape?
A: When I tried to evade, I looked on my side where the room was not that dark that I could not
see the person and so, I saw that it was my brother-in-law, maam.

xxxx
Q: When you saw that it was your brother-in-law kissing your nape while you were on a prone
position, what else happened, if any?
A: He kissed my neck, maam.
Q: What was your position while he was kissing your neck?
A: I was on my side at that time and I was also crying, maam.
xxxx
Q: Why were you crying at that time while he was kissing your neck?
A: I was afraid of what will happen next, maam.
Q: Aside from that incident that he was kissing your neck, was there any other previous incident
that happened?
A: Yes, maam.
xxxx
Q: What incident was that?
A: At that time, my brother-in-law covered me and my nephew with a blanket and he tried to get
my clothes off, maam.
Q: When did this happen, AAA?
A: Also on said date, maam.
Q: You said that he covered you and your nephew with a blanket and then taking (sic) off your
clothes?
A: Yes, maam.
xxxx
Q: Was he able to take off your clothes?
A: Yes, maam.
Q: What particular clothing was he able to take off?
A: My short pants and underwear, maam.
Q: While he was taking off your short pants and your underwear, what did you do, if any?
A: I tried to fight him off, maam.
xxxx
Q: You said that he was trying to take off your clothes and undergarments, what was your position
at that time?
A: I was lying down, maam.
Q: What about him?
A: He was on my lap, maam.
xxxx
Q: You said that you saw him take off his short pants?
A: Yes, maam.
xxxx
Q: Did he also take off his brief?
A: Yes, maam.
xxxx
Q: And after that what happened, AAA?
A: After removing his undergarments, he suddenly brought his body on top of me and he held my
hands. At that time I was crying and still resisting and then he was trying to get my legs apart. I was
still resisting at that time, and at some point in time I felt weak and he was able to part my legs,
maam.
Q: Could you please tell us how did (sic) he able to part your legs?
A: He did that with his legs while he was holding my hands, maam.
Q: And when he was able to part your legs, what happened next?
A: He tried to insert his sexual organ but he was not able to do so, maam.
Q: How did you know that he was trying to insert his sexual organ?
A: "Naidikit po niya sa ari ko."
Q: Which part of your body was he able to touch his sexual organ? (sic)

A: On my sexual organ, maam.


xxxx
Q: You mentioned earlier that he was not able to penetrate your private part, AAA?
A: Yes, maam.
Q: So, what happened after that?
A: I cried and then while I was resisting, I hit my wrist on the wall and my wrist was "nagasgas,"
maam.
xxxx
Q: And were you able to successfully resist?
A: Yes, maam, I was able to kicked (sic) his upper thigh, maam. 23 (italics supplied; emphasis ours)
From the foregoing, we find it clear that the appellants penis did not penetrate, but merely touched
(i.e.,"naidikit"), AAAs private part. In fact, the victim confirmed on cross-examination that the
appellant did not succeed in inserting his penis into her vagina. Significantly, AAAs
Sinumpaang Salaysay24 also disclosed that the appellant was holding the victims hand when he was
trying to insert his penis in her vagina. This circumstance coupled with the victims declaration that
she was resisting the appellants attempt to insert his penis into her vagina makes penile
penetration highly difficult, if not improbable. Significantly, nothing in the records supports the CAs
conclusion that the appellants penis penetrated, however slightly, the victims female organ.
Did the touching by the appellants penis of the victims private part amount to carnal knowledge
such that the appellant should be held guilty of consummated rape?
In People v. Campuhan,25 the Court laid down the parameters of genital contact in rape cases, thus:
Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking
or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's
vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the
penis indeed touched the labias or slid into the female organ, and not merely stroked the external
surface thereof, for an accused to be convicted of consummated rape. As the labias, which are
required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis
or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath
the surface, hence, the conclusion that touching the labia majora or the labia minora of the
pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the
labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a
grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. 26 (italics
supplied)

Simply put, "rape is consummated by the slightest penile penetration of the labia majora or
pudendum of the female organ."27 Without any showing of such penetration, there can be no
consummated rape; at most, it can only be attempted rape [or] acts of lasciviousness." 28
As earlier discussed, the prosecution failed to present sufficient and convincing evidence to establish
the required penile penetration. AAAs testimony did not establish that the appellants penis touched
the labias or slid into her private part. Aside from AAAs testimony, no other evidence on record, such
as a medico-legal report, could confirm whether there indeed had been penetration, however slight,
of the victims labias. In the absence of testimonial or physical evidence to establish penile
penetration, the appellant cannot be convicted of consummated rape.
Article 6 of the Revised Penal Code, as amended, states that there is an attempt when the offender
commenced the commission of the crime directly by overt acts but does not perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance.
In People v. Publico,29 we ruled that when the "touching" of the vagina by the penis is coupled
with the intent to penetrate, attempted rape is committed; otherwise, the crime committed is
merely acts of lasciviousness.
In the present case, the appellant commenced the commission of rape by the following overt acts:
kissing AAAs nape and neck; undressing her; removing his clothes and briefs; lying on top of her;
holding her hands and parting her legs; and trying to insert his penis into her vagina. The appellant,
however, failed to perform all the acts of execution which should produce the crime of rape by
reason of a cause other than his own spontaneous desistance, i.e., the victim's loud cries and
resistance. The totality of the appellants acts demonstrated the unmistakable objective to insert his
penis into the victims private parts.
A review of jurisprudence reveals that the Court has not hesitated to strike down convictions for
consummated rape when the evidence failed to show that penetration, however slight, of the victims
vagina took place. In People v. Bon,30 the Court found the appellant guilty of attempted rape only, as
there was no indication that the appellants penis even touched the labia of the pudendum of the
victim. We further held that the appellant could not be convicted of consummated rape by presuming
carnal knowledge out of pain.
The Court had a similar ruling in People v. Miranda,31 where the accused tried to insert his penis into
the victims private parts, but was unsuccessful, so he inserted his fingers instead. We convicted the
accused of attempted rape only due to lack of evidence to establish that there was even a slight
penile penetration. We noted, however, that the appellants act of inserting his fingers would have
constituted rape through sexual assault had the offense occurred after the effectivity of the Anti-Rape
Law of 1997.
In People v. Alibuyog,32 the victim declared that the accused placed his penis on her vagina; and
claimed that it touched her private parts. The Court set aside the accuseds conviction for rape, and
convicted him of attempted rape only, because we found the victims testimony too ambiguous to
prove the vital element of penile penetration. We added that the victims testimony was "replete with
repeated denial of penile insertion."33
Similarly, in People v. Quarre,34 the evidence for the prosecution consisted only of the victims
testimony that the accused tried, but failed, to insert his penis into her vagina, and she felt pain in the
process. No medico-legal examination report was presented in evidence. Accordingly, the Court
reversed the accuseds conviction for rape, and found him guilty of attempted rape only.

In People v. Ocomen,35 the Court also set aside the appellants conviction for rape because no proof
was adduced of even the slightest penetration of the female organ, aside from a general statement
of the victim that she had been "raped."
People v. Monteron36 is another noteworthy case where the Court set aside the appellants conviction
for rape. In this case, the victim testified that the accused placed his penis on top of her vagina, and
that she felt pain. In finding the accused guilty of attempted rape only, we held that there was no
showing that the accuseds penis entered the victims vagina. We added that the pain that the victim
felt might have been caused by the accuseds failed attempts to insert his organ into her vagina.
In People v. Mariano,37 the accused tried to insert his penis into the victims vagina, but failed to
secure penetration. The Court set aside the accuseds conviction for three (3) counts of rape and
found him guilty of attempted rape only. We explained the necessity of carefully ascertaining whether
the penis of the accused in reality entered the labial threshold of the female organ to accurately
conclude that rape had been consummated.
In People v. Arce, Jr.,38 the Court found the accused guilty of attempted rape only, because the victim
did not declare that there was the slightest penetration, which was necessary to consummate rape.
On the contrary, she categorically stated that the accused was not able to insert his penis into her
private parts because she was moving her hips away. We further ruled that the victims attempt to
demonstrate what she meant by "idinidikit ang ari" was unavailing to prove that rape had been
consummated.
In People v. Francisco,39 the victim testified that the accused "poked" her vagina. The Court set aside
the accuseds conviction for qualified rape, and convicted him instead only of attempted rape after
failing to discern from the victim's testimony that the accused attained some degree of penile
penetration, which was necessary to consummate rape.
1wphi1

In People v. Dimapilis,40 the Court refused to convict the accused for consummated rape on the basis
of the victim's testimony that she felt the accused's penis pressed against her vagina as he tried to
insert it. We explained that in order to constitute consummated rape, there must be entry into the
vagina of the victim, even if only in the slightest degree.
Finally, in People v. Tolentino,41 the Court reversed the accuseds conviction for rape and convicted
him of attempted rape only, as there was paucity of evidence that the slightest penetration ever took
place. We reasoned out that the victims statements that the accused was "trying to force his sex
organ into mine" and "binundol-undol ang kanyang ari" did not prove that the accuseds penis
reached the labia of the pudendum of the victims vagina.
"In rape cases, the prosecution bears the primary duty to present its case with clarity and
persuasion, to the end that conviction becomes the only logical and inevitable conclusion." 42 We
emphasize that a conviction cannot be made to rest on possibilities; strongest suspicion must not be
permitted to sway judgment. In the present case, the prosecution failed to discharge its burden of
proving all the elements of consummated rape.
The Proper Penalty and Indemnities
Under Article 51 of the Revised Penal Code, the imposable penalty for attempted rape is two
degrees lower than the prescribed penalty of reclusion perpetua for consummated rape. Two
degrees lower from reclusion perpetua is prision mayor whose range is six (6) years and one (1) day
to 12 years. Without any attendant aggravating or mitigating circumstances and applying the
Indeterminate Sentence Law, the maximum of the penalty to be imposed upon the appellant is

prision mayor in its medium period, while the minimum shall be taken from the penalty next lower in
degree, which is prision correccional whose range is six (6) months and one (1) day to six (6) years,
in any of its periods. Accordingly, we sentence the appellant to suffer the indeterminate penalty of six
(6) years of prision correccional, as minimum, to 10 years of prision mayor, as maximum.
In addition, we order the appellant to pay the victim P 30,000.00 as civil indemnity, P 25,000.00 as
moral damages and P 10,000.00 as exemplary damages, in accordance with prevailing
jurisprudence on attempted rape cases.43
WHEREFORE, premises considered, the June 15, 2009 decision of the Court of Appeals in CA-G.R.
CR HC No. 02759 is MODIFIED, as follows:
The appellant's conviction for the crime of rape is VACATED, and
(1) we find appellant Christopher Pareja y Velasco GUILTY of the crime of ATTEMPTED
RAPE;
(2) we SENTENCE him to suffer the indeterminate penalty of six ( 6) years of prision
correccional, as minimum, to 10 years of prision mayor, as maximum; and
(3) we ORDER him to PAY the victim the amounts of P 30,000.00 as civil
indemnity; P 25,000.00 as moral damages; and P 10,000.00 as exemplary damages.
G.R. No. 166441

October 8, 2014

NORBERTO CRUZ y BARTOLOME, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines the distinction between attempted rape and
acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts of
lasciviousness does not. Only the direct overt acts of the offender establish the intent to lie with the
female. However, merely climbing on top of a naked female does not constitute attempted rape
without proof of his erectile penis being in a position to penetrate the female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004, whereby the Court of Appeals
(CA) affirmed the conviction for attempted rape of the petitioner by the Regional Trial Court, Branch
34, in Balaoan, La Union (RTC), and imposing on him the indeterminate penalty of imprisonment of
four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum, and ordering him to pay moral damages of P20,000.00 to AAA, the victim.
1

Antecedents

The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving
different victims. At arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal
Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar,Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, said accused, did then and there
willfully, unlawfully and feloniously and by means of force and intimidation commenced the
commission ofrape directly byovert acts, to wit: While private complainant AAA, an unmarried
woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said
accused remove her panty and underwear and lay on top of said AAA embracing and touching her
vagina and breast with intent of having carnal knowledge of her by means of force, and if the
accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not
because of his voluntary desistance but because the said offended party succeeded in resisting the
criminal attempt of said accused to the damage and prejudice of said offended party.
CONTRARY TO LAW.

Criminal Case No. 2389


Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 oclock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd
design, did then and there willfully, unlawfully and feloniously touch the vagina of [BBB] against the
latters will and with no other purpose but to satisfy his lascivious desire to the damage and prejudice
of said offended party.
4

CONTRARY TO LAW.

Version of the Prosecution


The CA summarized the version of the Prosecution as follows:

x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of
plastic wares and glass wares in different municipalities around the country. On December 20, 1993,
Norberto and Belinda employed AAA and BBB to help them in selling their wares in Bangar, La
Union which was then celebrating its fiesta. From Libsong East, Lingayen, Pangasinan to Bangar, La
Union, AAA and BBB boarded a passenger jeepney owned by Norberto. The young girls were
accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name of
"Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked
in front of Maroon enterprises. They brought out all the goods and wares for display. Two tents were
fixed in order that they will have a place to sleep. Belinda and the driver proceeded to Manila in
order to get more goods to be sold.
On December 21, 1993, at around 1:00 oclock in the morning, AAA and BBB went to sleep. Less
thanan hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was

mashing her breast and touching her private part. AAA realized that she was divested of her clothing
and that she was totally naked. Norberto ordered her not to scream or shell be killed. AAA tried to
push Norberto away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back
and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not
totell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help
from Jess (the house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of
BBB. AAA saw her companion awake but her hands wereshaking. When she finally entered the tent,
Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later
still, while they were on their way to fetch water, AAA and BBB asked the people around where they
can find the municipal building. An old woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they
met a policeman by the name of "Sabas".
They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the
police station where he personally confronted his accusers. When Norbertos wife, Belinda, arrived
at the police station, an argument ensued between them.
On December 22, 1993, at around 2:20 oclock in the morning, the police investigator ordered the
complainants to return at6:00 oclock in the morning. Norberto and Belinda were still able to bring
AAA and BBB home with them and worked for them until December 30, 1994, after which they were
sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn
statements against Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His version was presented in the assailed
decision of the CA, as follows:
7

In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The
accused maintains that it was not possible for him to commit the crimes hurled against him. On the
date of the alleged incident, there were many people around who were preparing for the "simbang
gabi". Considering the location of the tents, which were near the road and the municipal hall, he
could not possibly do the dastardly acts out in the open, not to mention the fact that once AAA and
BBB would scream, the policemen in the municipal hall could hear them. He believes that the reason
why the complainants filed these cases against him was solely for the purpose of extorting money
from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6, 2000 finding
the petitioner guilty beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts
of lasciviousness in Criminal Case No. 2389, to wit:
8

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the
accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of
ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as defined and penalized in Article 335 in
relation with (sic) Article 6, par. 3 and Article 336 of the Revised Penal Code respectively. With
respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the
accessory penalties provided for by law and to pay the victim AAA the amount of P20,000.00 as
moral damages.
With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused
to suffer an indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as
Minimum to FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum
and the accessory penalties provided for by law, and to pay the victim BBBthe amount of P10,000.00
as moral damages.
The preventive imprisonment suffered by the accused by reason of the two cases is counted in his
favor.
SO ORDERED.

Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape
despite the dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not
testify.
On July 26, 2004, the CA promulgated its decision affirming the conviction of the petitioner for
attempted rape in Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged
in Criminal Case No. 2389 due to the insufficiency of the evidence, holding thusly:
10

In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even
slightly, the overall integrity and probative value of the prosecution's evidence insofar as AAA is
concerned.
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower
by two (2) degrees" prescribed by law for the consummated felony. In this case, the penalty for rape
if it had been consummated would have been reclusion perpetuapursuant to Article 335 of the
Revised Penalty Code, as amended by Republic Act No. 7659. The penalty two degrees lower than
reclusion perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium
period of prision mayorin the absence of any mitigating or aggravating circumstance and the
minimum shall be within the range of the penalty nextlower to that prescribed for the offense which in
this case is prision correccionalin any of its periods.
We also find that the trial court correctly assessed the amount of P20,000.00 by way of moral
damages against the accused-appellant. In a rape case, moral damages may be awarded without
the need of proof or pleading since it is assumed that the private complainant suffered moral injuries,
more so, when the victim is aged 13 to 19.

Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there
is not enough evidence to support such accusation. BBB did not testify and neither her sworn
statement was formally offered in evidence to support the charge for acts of lasciviousness.
In this case, the evidence adducedby the prosecution is insufficient to substantiate the charge of
acts of lasciviousness against the accusedappellant. The basis of the complaint for acts of
lasciviousness is the sworn statement of BBB to the effectthat the accused-appellant likewise
molested her by mashing her breast and touching her private part. However, she was not presented
to testify. While AAA claims that she personally saw the accused touching the private parts of BBB,
there was no testimony to the effect that suchlascivious acts were without the consent or against the
will of BBB.
11

Issues
In this appeal, the petitioner posits that the CAs decision was not in accord with law or with
jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and
II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt
of the petitioner beyond reasonable doubt.
Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA
still continued working for him and his wife until December 30, 1994 despite the alleged attempted
rape in the early morning of December 21, 1994, thereby belying his commission of the crime
against her; that he could not have undressed her without rousing her if she had gone to sleep only
an hour before, because her bra was locked at her back; that her testimony about his having been
on top of her for nearly an hour while they struggled was also inconceivable unless she either
consented to his act and yielded to his lust, or the incident did not happen at all, being the product
only of her fertileimagination; that the record does not indicate if he himself was also naked, or that
his penis was poised to penetrate her; and that she and her mother demanded from him P80,000.00
as settlement, under threat that she would file a case against him.
12

On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that
cast doubt on her veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of Court, the Court reviews only questions of law. No
review of the findings of fact by the CA is involved. As a consequence of thisrule, the Court accords
the highest respect for the factual findings of the trial court, its assessment of the credibility of
witnesses and the probative weight of their testimonies and the conclusions drawn from its factual
findings, particularly when they are affirmed by the CA. Judicial experience has shown, indeed, that
the trial courts are in the best position to decideissues of credibility of witnesses, having themselves
heard and seen the witnesses and observed firsthand their demeanor and deportment and the
manner of testifying under exacting examination. As such, the contentionsof the petitioner on the
credibility of AAA as a witness for the State cannot beentertained. He thereby raises questions of
fact that are outside the scope of this appeal. Moreover, he thereby proposes to have the Court,
which is not a trier of facts, review the entire evidence adduced by the Prosecution and the Defense.
13

Conformably with this limitation, our review focuses only on determining the question of law of
whether or not the petitioners climbing on top of the undressed AAA such thatthey faced each other,
with him mashing her breasts and touching her genitalia with his hands, constituted attempted rape,
the crime for which the RTC and the CA convicted and punished him. Based on the information,
supra, he committed such acts "with intent of having carnal knowledge ofher by means of force, and
if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it
was not because of his voluntary desistance but because the said offended party succeeded in
resisting the criminal attempt of said accused to the damage and prejudice of said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code, when the offender
commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than this own
spontaneous desistance. In People v. Lamahang, the Court, speaking through the eminent Justice
Claro M.Recto, eruditely expounded on what overt acts would constitute anattempted felony, to wit:
14

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. xxxx But it is not sufficient,
for the purpose of imposing penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop
into one of the offenses defined and punished by the Code; it is necessary to prove that said
beginning of execution, if carried to its complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material
damage iswanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but
the same must be inferred from the nature of the acts of execution (accion medio). Hence, the
necessity that these acts be such that by their very nature, by the facts to which they are related, by
the circumstances of the persons performing the same, and by the things connected therewith, they
must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation, that is, in favor as well as against the culprit, and which show an innocent
aswell as a punishable act, must not and cannot furnish grounds by themselves for attempted or
frustrated crimes. The relation existing between the facts submitted for appreciation and the offense
of which said facts are supposed to produce must be direct; the intention must be ascertainedfrom
the facts and therefore it is necessary, in order to avoid regrettable instance of injustice, that the
mind be able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to exist,
the offender must commence the commission of the felony directly by overt acts, that is to say, that
the acts performed must be such that, withoutthe intent to commit an offense, they would be
meaningless."
15

To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to
determine the law on rape in effect on December 21, 1993, when the petitioner committed the crime
he was convicted of. That law was Article 335 of the Revised Penal Code, which pertinently provided
as follows:
Article335. When and how rape is committed. Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;


2. When the woman is deprived ofreason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxxx
The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge
isdefined simply as "theact of a man having sexual bodily connections with a woman," which
explains why the slightest penetration of the female genitalia consummates the rape. In other words,
rape is consummated once the peniscapable of consummating the sexual act touches the external
genitalia of the female. In People v. Campuhan, the Court has defined the extent of "touching" by
the penis in rape in the following terms:
16

17

18

[T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or
grazing of organs, a slight brush or a scrape of the penis on the external layer of the victims vagina,
or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis
indeedtouched the labias or slid into the female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated rape. As the labias, which are required to
be "touched" bythe penis, are by their natural situsor location beneath the mons pubisor the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath the surface,
hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.
The pudendumor vulvais the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubisis the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majoraor the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majorais the
labia minora. Jurisprudence dictates that the labia majoramust be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the female organ. xxxx Thus, a
grazing of the surface of the female organ or touching the mons pubisof the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold
emphasis supplied]
It is noteworthy that in People v. Orita, the Court clarified that the ruling in People v. Eriia whereby
the offender was declared guilty of frustrated rapebecause of lack of conclusive evidence of
penetration of the genital organ of the offended party, was a stray decisionfor not having been
reiterated in subsequent cases. As the evolving case law on rape stands, therefore, rape in its
frustrated stage is a physical impossibility, considering that the requisites of a frustrated felony under
Article 6 of the Revised Penal Codeare that: (1) the offender has performed all the acts of execution
which would produce the felony; and (2) that the felony is not produced due to causes independent
of the perpetrators will. Obviously, the offender attains his purpose from the moment he has carnal
knowledge of his victim, because from that moment all the essential elements of the offense have
been accomplished, leaving nothing more to be done by him.
19

20

21

Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt
actsfor purposes of the attempted stage has been explained in People v. Lizada:
22

An overt or external act is defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. The raison detrefor the law requiring a direct overtact is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal;
and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality remains, no one can
say with certainty what the intent of the accused is.It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or
some subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and necessary relation to the offense. (Bold
emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the
acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia
consummates rape, and rape in its attempted stage requires the commencement of the commission
of the felony directly by overt actswithout the offender performing all the acts of execution that
should produce the felony, the only means by which the overt acts performed by the accused can be
shown to have a causal relation to rape as the intended crime is to make a clear showing of his
intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of
criminal law, that showing must be through his overt acts directly connected with rape. He cannot
be held liable for attempted rape withoutsuch overt acts demonstrating the intent to lie with the
female. In short, the State, to establish attempted rape, must show that his overt acts, should his
criminalintent be carried to its complete termination without being thwarted by extraneous matters,
would ripen into rape, for, as succinctly put in People v. Dominguez, Jr.: "The gauge in determining
whether the crime of attempted rape had been committed is the commencement of the act of sexual
intercourse, i.e., penetration of the penis into the vagina, before the interruption."
23

24

25

The petitioner climbed on top of the naked victim, and was already touching her genitalia with his
hands and mashing her breasts when she freed herself from his clutches and effectively ended his
designs on her. Yet, inferring from such circumstances thatrape, and no other,was his intended
felony would be highly unwarranted. This was so, despite his lust for and lewd designs towards her
being fully manifest. Such circumstances remained equivocal, or "susceptible of double
interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not permissible
to directly infer from them the intention to cause rape as the particular injury. Verily, his felony would
not exclusively be rapehad he been allowed by her to continue, and to have sexual congress with
her, for some other felony like simple seduction (if he should employ deceit to have her yield to
him) could also be ultimate felony.
26

We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not
include equivocal preparatory acts. The former would have related to his acts directly connected to
rape as the intended crime, but the latter, whether external or internal, had no connection with rape
as the intended crime. Perforce, his perpetration of the preparatory acts would not render him guilty
of an attempt to commit such felony. His preparatory acts could include his putting up of the
27

separate tents, with one being for the use of AAA and BBB, and the other for himself and his
assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares. Such
acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not
punishable under the Revised Penal Codefor as long as they remained equivocal or of uncertain
significance, because by their equivocality no one could determine with certainty what the
perpetrators intent really was.
28

If the acts of the petitioner did not constitute attempted rape, did they constitute acts of
lasciviousness?
It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is
the offendersintent to lie with the female. In rape, intent to lie with the female is indispensable, but
this element is not required in acts of lasciviousness. Attempted rape is committed, therefore, when
the "touching" of the vagina by the penis is coupled with the intent to penetrate. The intent to
penetrate is manifest only through the showing of the penis capable of consummating the sexual act
touching the external genitalia of the female. Without such showing, only the felony of acts of
lasciviousness is committed.
29

30

31

Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is
consummated whenthe following essential elements concur, namely: (a) the offender commits any
act of lasciviousness or lewdness upon another person of either sex; and (b) the act of
lasciviousness or lewdness is committed either (i) by using force or intimidation; or (ii) when the
offended party is deprived ofreason or is otherwise unconscious; or (iii) when the offended party is
under 12 years of age. In that regard, lewdis defined as obscene, lustful, indecent, lecherous; it
signifies that form of immorality that has relation to moral impurity; or that which is carried on a
wanton manner.
32

33

The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of
said AAA embracing and touching her vagina and breast." With such allegation of the information
being competently and satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of
lasciviousness, not attempted rape. His embracing her and touching her vagina and breasts did not
directly manifest his intent to lie with her. The lack of evidence showing his erectile penis being in the
position to penetrate her when he was on top of her deterred any inference about his intent to lie
with her. At most, his acts reflected lewdness and lust for her.
The intent to commit rape should not easily be inferred against the petitioner, even from his own
declaration of it, if any, unless he committed overt acts directly leading to rape. A good illustration of
this can be seen in People v. Bugarin, where the accused was charged with attempted rape through
an information alleging that he, by means of force and intimidation, "did then and there willfully,
unlawfully and feloniously commence the commission of the crime of Rape directly by overt acts, by
then and there kissing the nipples and the vagina of the undersigned [complainant], a minor, and
about to lay on top of her, all against her will, however, [he] did not perform all the acts of execution
which would have produced the crime of Rape by reason of some causes other than his own
spontaneous desistance, that is, undersigned complainant push[ed] him away." The accused was
held liable only for acts of lasciviousness because the intent to commit rape "is not apparent from the
actdescribed," and the intent to have sexual intercourse with her was not inferable from the act of
licking her genitalia. The Court also pointed out that the "act imputed to him cannot be considered a
preparatory act to sexual intercourse."
34

35

Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of
lasciviousness, is punished with prision correccional. In the absence of modifying circumstances,
prision correccional is imposed in its medium period, which ranges from two (2) years, four (4)

months and one day to four (4) years and two (2) months. Applying the Indeterminate Sentence Law,
the minimum of the penalty should come from arresto mayor, the penalty next lower than prision
correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four
(4) months and one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity
by his lewdness. "Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission." Indeed, Article 2219, (3), of the Civil Code
expressly recognizes the right of the victim in acts of lasciviousness to recover moral
damages. Towards that end, the Court, upon its appreciation of the record, decrees that P30,000.00
is a reasonable award of moral damages. In addition, AAA was entitled to recover civil indemnity
of P20,000.00.
1wphi1

36

37

38

39

Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a
part of the damages in crimes and quasidelicts. In that regard, the moral damages of P20,000.00
shall earn interest of 6% per annum reckoned from the finality of this decision until full payment.
40

WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME
guilty of ACTS OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four
(4) months and one day of prision correccional, as the maximum; ORDERS him to pay moral
damages of P30,000.00 and civil indemnity of P20,000.00 to the complainant, with interest of 6% per
annum on such awards reckoned from the finality of this decision until full payment; and DIRECTS
him to pay the costs of suit.