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[G.R. No. 138261.

April 17, 2001]


PEOPLE OF THE PHILIPPINES, appellee, vs. PEDRO RAMIREZ, appellant.
DECISION
PANGANIBAN, J.:
The credibility of witnesses and their testimonies is best assessed by the
trial court, which had the opportunity to observe their demeanor and conduct
on the stand. Moreover, reclusion perpetua is an indivisible penalty; hence, it is
imposed in its entirety.
The Case
Pedro Ramirez appeals the Decision[1] of the Regional Trial Court (RTC) of
Ormoc City (Branch 35) in Criminal Case No. 4195-O, finding him guilty of
murder and sentencing him to suffer imprisonment of forty (40) years reclusion
perpetua.
Ormoc City Prosecutor Alberto L. Canopio filed an Information dated June
16, 1993, charging appellant with murder allegedly committed as follows:

That on or about the 21st day of May 1993, at around 7:30 oclock in the
evening, Brgy. San Jose, Ormoc City, and within the jurisdiction of this
Honorable Court, the above-named accused PEDRO RAMIREZ, with treachery,
evident premeditation and intent to kill, did then and there willfully, unlawfully
and feloniously attack, assault, stab and wound the person of the victim herein
JONATHAN Jojo ALKUINO, without giving the latter sufficient time to defend
himself, thereby inflicting upon said JONATHAN Jojo ALKUINO mortal wounds
which caused his death. Medical Certificate is hereto attached.[2]

When arraigned on March 20, 1997, appellant, with the assistance of


counsel,[3] entered a plea of not guilty. Trial on the merits ensued. On February
18, 1999, the trial court promulgated its assailed Decision, the dispositive
portion of which reads as follows:

WHEREFORE, having moral certainty from all of the foregoing, the Court finds
the accused Pedro Ramirez GUILTY beyond reasonable doubt of the crime of
murder and hereby sentences him to suffer imprisonment of forty (40) years
reclusion perpetua and to pay the aggrieved party the sum of P50,000.00 as
indemnity and another sum of P50,000.00 as moral damages.

If the accused is a detainee, his period of detention shall be credited to him in


full if he abides in writing by the terms for convicted prisoners; otherwise, for
only four-fifths (4/5) thereof.

In view of the penalty imposed, the appeal was lodged directly with this
Court.[4]
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General summarizes the prosecutions
version of the facts in this wise:[5]

1. On May 21, 1993 at around 7:30 in the evening, Montano Baez, after
entertaining his visitors on the occasion of the town fiesta of Bgy. San Jose,
Ormoc City, was strolling in the public plaza where he met Jonathan Jojo
Alkuino, a former resident of the barangay (pp. 6-11, tsn, July 22, 1997).

1
2. Montano Baez took him aside and invited Jojo to a drinking spree in a
nearby store. They sat side by side on a bench outside the store and while
exchanging pleasantries and drinking, appellant Pedro Ramirez suddenly came
in front of them. Appellant ordered beer. Then he calmly approached Jojo
hitting him on the right side of the body just below the ribs (pp. 6-11, tsn,
supra).

3. Jojo Alkuino was brought to the Ormoc District Hospital and was examined
and treated by Dr. Kierulf who issued the medical certificate (Exhibit A) with
the following findings:

The stab wound that hit the victim was at his right anterior chest wall, at the
level of 4th ICS penetrating thoracic abdominal cavity, incising the right lobe of
the liner with massive hemothorax and hemoperit[o]neum

Although the victim was conscious and alive when he was admitted on May 21,
1993 at around 9:55 in the evening, he, however, died the following day at
about 5:30 in the afternoon due to hypovolemic shock or massive blood loss (p.
24, tsn, July 17, 1998).

Version of the Defense

In his Brief, appellant presents the following statement of facts:[6]

The first witness, Remegio Montalban, testified that he [was] a resident and
farmer of Brgy. Sta. Cruz, San Francisco, Camotes, Cebu, and a neighbor of
Pedro Ramirez, the accused. On May 21, 1993, he remembered he and Pedro
Ramirez were working on his farm in said barangay. They had been working on
the farm since 1991. He knows that the accused went to Ormoc City in 1986
but he returned in 1990 and since then he never left their barangay. On cross
examination, the witness admit[ed] there [was] a regular trip from San
Francisco, Camotes to Ormoc City and the trip would take only more than an
hour to negotiate. When asked, however, as to the birth dates of his 8 children,
he could not tell all. Even on the date of the arrest of the accused, his
testimony falter[ed] (TSN of July 29, 1998, pp. 6-21).

The second witness was the accused himself. His line of testimony
corroborate[d] the testimonies of his first and third witnesses. Accused
admit[ted] having gone to Ormoc City and that was in the year 1986 when he
was hired by Poten Larrazabal to harvest his sugarcane plantation. He stayed
there for four (4) years, up to 1990, in Laray, Valencia together with his wife
and two children (TSN of September 2, 1998, p. 9, p. 44). He testified that on
May 21, 1993 he was at Barangay Santa Cruz, Camotes, Cebu working. He
even denie[d] knowing where Barangay San Jose, Ormoc City, [was][;] in short,
he denie[d] the charge against him.

On cross examination, the accused testified that he did not go out too often
while he was living in Sitio Laray, Valencia; that he did not even hear of
Barangay San Jose (TSN of September 2, 1996. Pp. 22-23).

The last witness, Eduardo Austria, corroborate[d] the line of theory of the
accused and the first witness. They had a kind of cooperative work, Ramirez,
he, and Montalban. It was an inconsequential routine work and a passing of
day that occurred on May 21, 1993 and the following day (TSN of October 5,
1998, pp. 7-14)

2
On cross examination, the witness testified there was no cooperative work with
Ramirez around in May of 1994, 1995 and 1996; that the witness [did] not
even know the date of the incident involved in this case. (TSN, pp. 20-31)

The Trial Courts Ruling

In convicting appellant, the trial court gave credence to the prosecution


witnesses testimonies. It ruled as follows:

We can notice that from the testimony of Montano Baez up to the last witness
Amelito Biyu, there was positive identification of the assailant, the one who
stabbed Jonathan Alkuino; there was knowledge about the accused and the
victim. The testimonies of the witnesses were in details, not in generalities, and
[the] testimony of the father, Milchisedeck Alkuino relate[d] x x x the dying
declaration of his son, the victim in this case.The evidence so far adduced by
the prosecution established the elements of the crime of murder: the killing of
an individual [did] not [fall] under parricide and the killing was attended by
treachery, the fact that the stabbing was sudden and the victim was sitting
while the assailant was standing and there was therefore no means for the
victim to defend himself.[7]

On the other hand, the RTC rejected the defense witnesses testimonies for
being weak, unreliable and full of uncertainties. It concluded that the
prosecution evidence was not substantially overcome or overwhelmed by the
defenses own proof or evidence.[8]
Issues
In his Brief, appellant cites the following alleged errors:[9]
I The Court a quo erred in giving credence to the witnesses for the prosecution.
II The Court a quo erred in appreciating treachery notwithstanding the failure
of the prosecution to prove the same.
III The Court a quo erred in convicting the accused notwithstanding the failure
of the prosecution to prove his guilt beyond reasonable doubt.
In the main, the Court will resolve the following matters: (1) sufficiency of
the prosecution evidence and (2) presence of treachery. In addition, it will also
determine the propriety of appellants penalty and civil liability.
This Courts Ruling
The appeal is devoid of merit.
First Issue:
Sufficiency of Prosecution Evidence

The conviction of appellant was based on the eyewitness accounts of


Montano Baez and Amelito Biyu. Baez testified that he was with the victim
when the crime was committed. He narrated the incident in this wise:[10]

Q. Now at that particular time while you were having a round of drink with the
said Jonathan Jojo Alkuino, what happened?

A. Pedro Ramirez approached us, sir.

xxxxxxxxx

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Q. What did Pedro Ramirez do when he approached you and Jojo Alkuino?
A. They introduced each other and immediately thereafter he stabbed him,
sir.
xxxxxxxxx
Q. Who delivered that stab thrust?
A. It was Pedro Ramirez, sir.
Q. What kind of weapon did he use in stabbing the victim?
A. A knife, sir.
xxxxxxxxx
Q. When Pedro Ramirez whom you have identified earlier delivered a stab
thrust toward Jonathan Jojo Alkuino was the latter hit?
A. Yes sir, he was hit.
Q. Which part was x x x hit?
A. Here sir (witness tapping at his right just below the ribs).
Q. Now, after Pedro Ramirez stabbed Jonathan Jojo Alkuino, what did Pedro do
next?
A. They ran away, sir.
The foregoing narration was corroborated by Biyu, who was then a few meters
away from the crime scene. Pertinent portions of his testimony are reproduced
hereunder:[11]
Q. After having bought banana cue for your child, what happened?
A. After I bought banana cue, I also bought one bottle of beer in front of the
store where Jonathan Alkuino and Pedro Ramirez were having a drinking
spree.
Q. How far is that store [from] where Jonathan Alkuino and Pedro Ramirez
were?
A. About 3 meters more or less.
Q. What did you observe next?
A. While I was drinking one bottle of beer, he, Pedro Ramirez, approached
Jonathan Alkuino and Montano Baez (the witness pointed to the person earlier
identified as Pedro Ramirez).
Q. What did he do?
A. As far as I have seen, he approached Jonathan Alkuino and he talked for
awhile and after that he drew a knife and immediately stabbed.
Q. Was Jonathan Alkuino hit by the stab thrust delivered by the assailant?
A. Yes, sir.
Q. How many times did the assailant deliver his stab thrust?
A. Only once.
Q. After seeing that incident, wherein Jonathan Alkuino sustained an injury,
what did you do?
A. After he stabbed, he ran and Jonathan Alkuino asked for help, saying [H]elp
me because I [have been] stabbed by Pedro Ramirez.
As earlier noted, the trial court gave credence to these testimonies. Time
and time again, the Court has held that the trial court's findings on the
credibility of witnesses and their testimonies are accorded great weight and
respect, in the absence of a clear showing that some facts or circumstances of
weight or substance have been overlooked, misunderstood or
misapplied. [12] Indeed, the lower court had the opportunity to observe directly
the demeanor of the witnesses as they testified. In this case, appellant has not
given us any valid ground to reverse or modify the trial courts assessment.
Alleged Inconsistencies

4
Appellant contends that the trial court should not have accorded credence
to the prosecution witnesses, whose testimonies were full of inconsistencies
and contradictions.[13] He points out discrepancies regarding (1) the manner in
which appellant initiated the attack and (2) the behavior of the victim after the
incident.
Appellant insists that [a]ccording to Montano Baez, Pedro approached the
victim, and without saying any word, immediately stabbed the latter x x
x. However, Amelito Biyu testified that Pedro Ramirez approached Jonathan
Alkuino and talked to him for a while.[14]
This argument is not borne by the records. Contrary to the claim of the
defense, Baez did not say that appellant had approached the victim and
stabbed the latter without saying a word. In fact, Baez testified that appellant
and the victim had indeed talked very briefly.
Q. Exactly, what did Pedro Ramirez say?
A. There were no words uttered sir, except to introduce themselves.
Q. So, when the accused Ramirez introduced himself to the victim, Jojo
Alkuino also introduced himself to him, is that correct?
A. Yes, sir.[15]
Appellant also contends that the testimony of Biyu -- that the victim was
aided by friends and acquaintances after the incident was inconsistent with
that of Baez, who allegedly stated that the victim was still able to go home,
without mentioning whether he was aided by anyone.[16] It should be stressed,
however, that Baez did not say that the victim left the crime scene alone.[17] The
mere fact that the former was silent on whether the victim was assisted by
others does not mean that the latter was not assisted at all.
Likewise, we reject appellants claim that the testimony of Baez -- that the
latter saw appellant stab the right side of the victims body, below the ribs --
was inconsistent with that of the victims father, Milchisedeck Alkuino, who
said that the injury of his son was at his left arm.[18]
This alleged inconsistency pertains to a very trivial matter which does not
in any way affect the disposition of the case. It has been held that
inconsistencies referring only to minor details do not weaken the credibility of
witnesses. On the contrary, these inconsistencies are signs that the witnesses
were not rehearsed.[19]
In all, we agree with the trial court in convicting appellant based on the
eyewitness accounts of Baez and Biyu. The two saw the incident and positively
identified appellant as the perpetrator.
Appellants Alibi
In the light of the foregoing, we reject appellants alibi that he was in Cebu
when the crime was committed in Ormoc City on May 21, 1993. The well-
settled rule is that alibi cannot prevail over the positive identification of
appellant by credible witnesses.[20]
Second Issue:
Treachery

Appellant contends that treachery was not established in this case,


considering that the stabbing was neither swift nor sudden. He points out that
there was an exchange of words between the accused and the victim.[21]

5
We are not convinced. There is treachery when one employs means,
methods or forms in the execution of a crime without risk to oneself arising
from the defense which the offended party might make.[22]
In this case, treachery was not negated by the mere fact that the attacker
and the victim had spoken to each other briefly.[23] The prosecution established
that the attack was sudden and that the victim was defenseless, unarmed and
with no opportunity to retaliate. This fact is clear from Baezs following
testimony:[24]
Q. Was there an opportunity for Jojo Alkuino to retaliate?
A. There was none, sir.
Q. Was Jojo armed at that time?
A. No sir, he was no[t].
Q. In other words, he was defenseless when he was attacked.
A. Yes sir, he was defenseless.
Q. Why do you say that he was defenseless?
A. Was defenseless sir, because he was sitting then.
Q. He was able to parry that stab thrust?
A. No sir, he was not.
Q. Why not?
A. How could he parry the thrust made by Pedro Ramirez, [when] the thrust
was so sudden, sir.
Penalty and Civil Liability
In line with current jurisprudence,[25] we affirm the award of indemnity ex
delicto to the heirs of the victim in the sum of P50,000. This award needs no
proof other than the commission of the crime. Likewise, we sustain the award
of P50,000 for moral damages, which has evidentiary basis. The victims father
testified that as a result of the crime, he suffered heaviness of heart as well as
mental anguish.[26]
We disagree with the trial court, however, in sentencing appellant to suffer
imprisonment of forty (40) years reclusion perpetua. There was no justification
or need for the trial court to specify the length of imprisonment,
because reclusion perpetua is an indivisible penalty. The significance of this
fundamental principle was laid down by the Court in People v.
Diquit:[27] Since reclusion perpetua is an indivisible penalty, it has no minimum,
medium or maximum periods. It is imposed in its entirety regardless of any
mitigating or aggravating circumstances that may have attended the
commission of the crime. (Art. 63, Revised Penal Code)Reclusion perpetua is
imprisonment for life but the person sentenced to suffer it shall be pardoned
after undergoing the penalty for thirty (30) years, unless by reason of his
conduct or some other serious cause, he shall be considered by the Chief
Executive as unworthy of pardon (Art. 27, Revised Penal Code).
WHEREFORE, the appealed Decision is AFFIRMED, except in regard to the
penalty, which is hereby MODIFIED; accordingly, appellant is sentenced to the
indivisible penalty of reclusion perpetua. Costs against appellant.
SO ORDERED.
[G.R. No. 155620. August 9, 2005]
PRUDENCIO QUIMBO, petitioner, vs. ACTING OMBUDSMAN MARGARITO
GERVACIO and DIRECTRESS MARY SUSAN S. GUILLERMO OF THE
OMBUDSMAN OFFICE, respondents.
DECISION
CARPIO-MORALES, J.:

6
Culled from the records of the case are the following facts:
Petitioner, Prudencio C. Quimbo, Provincial Engineer of Samar, was on May
21, 1995 administratively charged for harassment and oppression by Elmo V.
Padaon (Padaon), a general foreman who was detailed to the Motor Pool
Division, Provincial Engineering, Barangay Payao, Catbalogan, Samar by then
Provincial Governor Jose Roo.
During the pendency of the administrative case before the Office of the
Deputy Ombudsman, petitioner, on motion of the complainant Padaon, was by
November 28, 1997 Order of the Ombudsman[1] placed under preventive
suspension without pay to commence upon receipt of the order and until such
time that it is lifted but in no case beyond Six (6) Months.
Petitioner began serving his preventive suspension on March 18, 1998.
After petitioner had presented on direct examination his last two witnesses,
the Office of the Ombudsman, by Order of April 27, 1998,[2] lifted petitioners
preventive suspension. He was thus thereupon ordered, by Memorandum of
June 3, 1998 issued by the OIC Provincial Governor, to resume performing his
duties as Provincial Engineer.[3]
By Decision of April 5, 2000,[4] the Office of the Deputy Ombudsman found
petitioner guilty of oppression and recommended that he be suspended from
office for a period of eight (8) months without pay, this case being the second
commission by him of the same offense.[5]
The Deputy Ombudsmans recommendation was approved by the
Ombudsman on April 28, 2000. Petitioners motion for reconsideration of the
Ombudsmans decision having been denied, he elevated the case to the Court of
Appeals.
The appellate court, by Decision of March 1, 2001,[6] modifying the decision
of the Ombudsman, found petitioner guilty of simple misconduct only and
penalized him with suspension from office for a period of Two (2) Months
without pay.
Following the finality of the appellate courts decision, the Office of the
Ombudsman, by Order dated June 24, 2002,[7] directed the Provincial Governor
to implement its decision, as modified by the appellate court.
Petitioner filed, however, before the Office of the Ombudsman a Motion for
Modification/Reconsideration[8] of its June 24, 2002 Order, calling attention to
the fact that he had been on preventive suspension from March 18, 1998 to
June 1, 1998 and praying that the order under reconsideration be modified to
take into account the period of [his] PREVENTIVE SUSPENSION of TWO (2)
MONTHS and SEVENTEEN (17) [DAYS] WITHOUT PAY as part of the final
penalty imposed.[9]
In a similar move, Provincial Governor Milagrosa Tan sent a letter[10] also
dated July 23, 2002 to the Ombudsman seeking clarification on the merits of
petitioners contention that he should no longer be required to serve the penalty
of Two (2) Months suspension without pay, he having priorly served preventive
suspension for more than Two (2) Months.
By letter dated August 21, 2002[11] addressed to the Provincial Governor,
the Office of the Ombudsman clarified that preventive suspension is not a
penalty but a preliminary step in an investigation; [and that] [i]f after such
investigation, the charge is established and the person investigated upon is
found guilty . . . warranting the imposition of penalty, then he shall accordingly

7
be penalized. The order for the implementation of its decision, as modified by
the appellate court, was thus reiterated in the letter.
Unperturbed, petitioner, via certiorari, assailed before the Court of Appeals
the Office of the Ombudsmans denial of his plea to be considered having served
the modified penalty.
By Resolution dated October 2, 2002,[12] the Court of Appeals dismissed
petitioners petition for certiorari, it affirming the Ombudsmans ruling that
preventive suspension pending investigation is not a penalty.
Hence, the present petition for review on certiorari raising as sole issue
whether the appellate court committed reversible error when it dismissed his
petition. Petitioner contends in the affirmative, he arguing that the dismissal of
his petition is in violation of the doctrine enunciated in Gloria v. Court of
Appeals[13] and the rule on equity that a person should not be punished twice
nor be made to suffer the suspension penalty after [he] had [served] the same
(although in a preventive suspension).[14]
The petition fails.
Jurisprudential law[15] establishes a clear-cut distinction between
suspension as preventive measure and suspension as penalty. The distinction,
by considering the purpose aspect of the suspensions, is readily cognizable as
they have different ends sought to be achieved.
Preventive suspension is merely a preventive measure, a preliminary step in
an administrative investigation. The purpose of the suspension order is to
prevent the accused from using his position and the powers and prerogatives of
his office to influence potential witnesses or tamper with records which may be
vital in the prosecution of the case against him.[16] If after such investigation,
the charge is established and the person investigated is found guilty of acts
warranting his suspension or removal, then he is suspended, removed or
dismissed. This is the penalty.[17]
That preventive suspension is not a penalty is in fact explicitly provided by
Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the
Administrative Code of 1987 (Executive Order No. 292) and other Pertinent
Civil Service Laws.

SEC. 24. Preventive suspension is not a punishment or penalty for


misconduct in office but is considered to be a preventive measure. (Emphasis
supplied).

Not being a penalty, the period within which one is under preventive
suspension is not considered part of the actual penalty of suspension. So
Section 25 of the same Rule XIV provides:

SEC. 25. The period within which a public officer or employee charged is placed
under preventive suspension shall not be considered part of the actual
penalty of suspension imposed upon the employee found guilty. (Emphasis
supplied).

Clearly, service of the preventive suspension cannot be credited as service


of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of
the Administrative Code of 1987 and render nugatory the substantial
distinction between, and purposes of imposing preventive suspension and
suspension as penalty.

8
Petitioners reliance on Gloria fails. In said case, this Court recognized two
kinds of preventive suspension of civil service employees who are charged with
offenses punishable by removal or suspension, to wit: (1) preventive
suspension pending investigation (Section 51 of the Civil Service Law [Book V,
Title I, Subtitle A of the Administrative Code of 1987]), and (2) preventive
suspensionpending appeal if the penalty imposed by the disciplining authority
is suspension or dismissal and, after review, the respondent is exonerated
(Section 47(4) of The Civil Service Law).[18]
The foregoing classification has significant implications in determining the
entitlement of the employee to compensation during the period of suspension,
and to credit the preventive suspension to the final penalty of suspension.
Thus, in Gloria, this Court held:

Preventive suspension pending investigation, as already discussed, is not a


penalty but only a means of enabling the disciplining authority to conduct an
unhampered investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect subsequently
considered illegal if respondent is exonerated and the administrative decision
finding him guilty is reversed. Hence, he should be reinstated with full pay for
the period of the suspension. Thus, 47(4) states that respondent shall be
considered as under preventive suspension during the pendency of the
appeal in the event he wins. On the other hand, if his conviction is
affirmed, i.e., if he is not exonerated, the period of his suspension becomes
part of the final penalty of suspension or dismissal. [19] (Emphasis and
underscoring supplied).

In fine, as petitioners preventive suspension was carried out pending


his investigation, not while his appeal from his conviction was pending, the
same cannot be credited to form part of the final penalty of suspension.
En passant, neither may the concept of crediting, in criminal law,
preventive imprisonment in the service of a convicts term of
imprisonment[20] be applied to preventive suspension during investigation in
administrative law in the service of a respondents final penalty of suspension.
For not only are they distinct in the objective or purpose, or in their nature as
preventive imprisonment involves restriction of personal liberties which is not
the case with preventive suspension; the respective laws covering them are
explicit.
Finally, as shown above, since the law explicitly prescribes the rules on
crediting of preventive suspension to the final penalty of suspension,
petitioners invocation of equity may not lie.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
PEOPLE OF THE PHILIPPINES V. BERNARDO GAFFUD JR.
[G.R. No. 168050] September 19, 2008

DECISION

PUNO, C.J.:

9
For review before this Court is the Decision[1] of the Court of Appeals (CA)
dated March 31, 2005 in CA-G.R. CR-HC No. 00060 finding the accused-
appellant Bernardino Gaffud, Jr. guilty of the complex crime of double murder
and sentencing him to death, affirming with modification the Decision[2] of the
Regional Trial Court (RTC) dated August 28, 2002 in Criminal Case No. 1125.

The facts of this case were aptly summarized by the CA as follows:

Records show that accused-appellant Bernardino Gaffud, Jr., along


with two John Does were indicted for Double Murder for the killing of
Manuel Salvador and Analyn Salvador, under the following Information:

The undersigned 2nd Assistant Provincial Prosecutor


accuses Bernardino Gaffud, Jr. and two (2) JOHN DOES of
the crime of DOUBLE MURDER defined and penalized under
Article 248 of the Revised Penal Code, committed as
follows:

That on or about 8:00 oclock in the evening of May 10,


1994 at Sitio Biton, Barangay Wasid, Municipality of
Nagtipunan, Province of Quirino, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused with intent to kill and motivated by long standing
grudge, after conspiring, confederating and mutually
helping one another, by means of fire, did then and there,
willfully, unlawfully, and feloniously, shot and burn Manuel
Salvador and Analyn Salvador which caused their
instantaneous death.

CONTRARY TO LAW. (p. 15, Records)

It appears that Manuel Salvador and his daughter Analyn Salvador


were killed when the house they were staying in located at Sitio Biton,
Barangay Wasid, Nagtipunan, Quirino was burned down while they
were inside. An eyewitness pointed to accused-appellant Bernardino
Gaffud, Jr. as one of the arsonists.

Upon preliminary investigation, where appellant Gaffud, Jr. failed to


appear despite being subpoenaed to submit his counter-affidavit,
Assistant Provincial Prosecutor Ferdinand Orias resolved that charges
for double murder by means of fire be filed against herein appellant and
two John Does, (p.14, Records).

When arraigned on June 6, 1995, accused-appellant Gaffud, Jr.


entered a plea of Not Guilty, (p. 48, Records), paving the way for his
trial.
The prosecution presented six (6) witnesses against appellant Gaffud,
Jr., namely Dominga Salvador, common-law wife of Manuel Salvador
and mother of Analyn Salvador, Orly Salvador, nephew of Manuel
Salvador, Potado Ballang, Barangay Captain of Wasid, Nagtipunan,
Quirino, Dan Dangpal, a neighbor of the deceased, SPO2 Dominador
Tabal, the investigating police, and Dr. Teodomiro Hufana who
conducted the autopsy on the deceased Manuel Salvador.

10
Evidence for the prosecution tended to prove that on the night of May
10, 1994, Orly Salvador was on his way to the house of his uncle
Manuel Salvador to fetch the latter as they were going to attend a
wedding at the nearby barangay hall. He suddenly heard two
gunshots. Thereafter, he saw the house of his uncle burning. Because
of the glow emanating therefrom, he saw three persons within the
vicinity of the burning house. He saw them hurriedly leaving the place
towards the direction of the Cagayan river. One of the three was holding
a flashlight, whom he identified as appellant Gaffud, Jr. He could not
identify the two other persons. After the house was burned, Orly went
towards the barangay hall to see if his uncle Manuel Salvador was
there, but he met Brangay Captain Potado Ballang who informed him
that his uncle was not at the barangay hall. They then proceeded to the
burned house, and found the charred remains of Manuel Salvador and
Analyn Salvador. (TSN, October 10, 1995, pp. 3-8)

Barangay Captain Potado Ballang testified that he saw appellant


Gaffud, Jr. on the fateful day at around 6:30 PM, along the riverbank, a
few meters away from the house of Manuel Salvador. When Potado
asked what he was doing there, Gaffud, Jr. said he was looking for his
boat. However, Potado knew that the appellant did not own a
boat. After a few minutes, Potado left to attend the wedding party being
held at the barangay hall. (TSN, November 4, 1996, pp. 2-5)

Dan Dangpals testimony was dispensed with, but the defense agreed to
the nature of the testimony he would have given, which tended to show
that sometime at about 8:00 PM on the fateful evening, while inside his
house, he heard successive gunshots, and when he went out of his
house, he saw the deceaseds house burning about 200 meters
away. He heard persons laughing and saw the light of a flashlight and
persons moving away from the burning house. He could not recognize
any of them. (TSN, February 24, 1997; Exhibit D, p. 8, Records)

Dominga Salvadors testimony tended to show that the appellant


Gaffud, Jr. was their neighbor. In the morning of May 10, 1994, she
went to the house of the appellant to see him about her husbands
share in the construction of the barangay hall, which was contracted to
the appellant. Gaffud, Jr. told her that he would go to her house that
afternoon to introduce his in-law Balbino Bravo to her
husband.Thereafter, she went home, and left again at around 11:00
AM, leaving behind her husband Manuel Salvador and their daughter
Analyn. Later that night, she was at Natipunan, Quirino attending a
seminar for hilot, (TSN, July 4, 1995, pp. 3-15). In her sinumpaang
salaysay, offered in evidence as Exhibit A, Dominga also related that
she had earlier filed a complaint in the barangay against the appellant
and his brother for slaughtering her pig.

SPO2 Dominador Tabal was a police investigator who investigated the


killing of Manuel and Analyn Salvador. Thereat, he saw two dead bodies
hanging from a Melina tree. They were put there so that they would not
be reached by the dogs. He saw that one of the victims had a fractured
head, while the other had a wound on the side. Pictures of the victims
including the scene of the incident were taken by them. Among those
interviewed the appellant Gaffud, Jr. and his brother, (TSN, June 5,
1997, pp. 2-7).

11
Dr. Teodomiro Hufanas testimony was also dispensed with, (p. 127,
Records) in view of the defense counsels admission of the contents of
his Autopsy Report on Manuel Salvador, (Exhibit C), which reads in
pertinent part:

FINDINGS

-Cremated charcoaled, about 3 ft. long, stomach and


intestine (Large) protruding from the abdomen.

-Presence of semi-burned rattan about 1 inch long about 1


cm. in diameter on the burned hand.

-Presence of a peculiar hole from the thoracic cavity


directed downward to the body, probably gunshot wound.

CAUSE OF DEATH:

-CREMATION (Burned)

REMARKS: Cannot be identified if male or female

For the appellants defense, the defense presented the appellant


himself. His defense of alibi was corroborated by his wife Juanita
Gaffud and in-law Balbino Bravo.

Appellant denied the accusation leveled against him, and


testified that the approximate time of the burning of the victims
house, he was at home, entertaining his in-laws, Balbino Bravo and
Rufina Bravo, who was there for a visit. After eating dinner, he and
Balbino Bravo talked. At around 7:00 to 8:00 PM, he and Balbino
Bravo saw a blaze coming from the other side of the Cagayan River,
about 50 to 80 meters away from the house of the Bravos. They did
not mind the blaze, and instead went to sleep. The next morning, they
heard news about somebody being burned, and because of this, he
and Balbino Bravo hiked to the place of the incident. Thats where he
found that his pare Manuel Salvador and his daughter were burned in
their house. After seeing the dead bodies, appellant went home. He
went back later, and was even designated by the Barangay Captain to
guard the bodies of the deceased. Thereafter, he was forced to
evacuate his family from Nagtipunan, because the Ilongot tribe was
forcing him to testify against someone but he didnt want to. He was
told that something might happen to his family if he didnt leave,
(TSN, June 3, 2002).

The appellants defense was corroborated on its material points


by the testimony of his wife, Juanita Gaffud, and his in-law, Balbino
Bravo, both of whom testified that on May 10, 1994, the accused was
at his residence entertaining visiting Bravo spouses and stayed there
the whole night, (TSN January 31, 2002 and March 18, 2002).

Juanita Gaffud also testified that during the pendency of the


trial, she talked to Dominga Salvador about the settlement of the
case and even offered a certain amount for the said purpose, (TSN,
March 10, 2002, p. 12).[3]

12
After trial, the RTC rendered its Decision finding accused-appellant guilty of
two (2) counts of murder, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the Court finds
Bernardino Gaffud, Jr. GUILTY for two (2) counts of murder and hereby
sentences him as follows, to wit:

a) Death penalty - for the death of Manuel Salvador;

b) Another death penalty - for the death of Analyn Salvador;

c) To pay the legal heirs of the victims:

c-1) SEVENTY FIVE THOUSAND PESOS (P75,000.00) for each count or


a total of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as
death indemnities;

c-2) FIFTY THOUSAND PESOS (P50,000.00) for each count or a total of


ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages;

c-3) TWENTY FIVE THOUSAND PESOS (P25,000) for each count or a


total of FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages;

c-4) TEN THOUSAND PESOS (P10,000.00) as nominal damages;

and

c-5) Costs.

xxxx

SO ORDERED.[4]

As the death penalty was imposed, the case was elevated to this Court for
automatic review. In his Appellants Brief,[5] accused-appellant argued that the
RTC erred in: (i) failing to rule and resolve whether or not conspiracy existed,
as the information charged him with conspiracy with two others in the
commission of the crime; and (ii) convicting him despite the fact that
conspiracy was not proven, and also despite the fact that there was no proof
whatsoever as to what overt act he committed which would constitute the
crime of murder.

The case was transferred to the CA for appropriate action and disposition per
Resolution[6] of this Court dated August 24, 2004, in accordance with the
ruling in People v. Mateo.[7] In disposing of the assigned errors, the CA held
that the lack of discussion of conspiracy among accused-appellant and his
anonymous co-accused in the decision of the RTC was not antithetic to his
conviction for the crime of murder, since the charge that he was a principal
performer in the killing of the victims was spelled out in the Information[8] filed
against him.[9]Moreover, in the absence of conspiracy, each of the malefactors
is liable only for the act committed by him.[10] As to the sufficiency of the
evidence presented by the prosecution, the CA held that the circumstantial
evidence in this case established accused-appellants guilt beyond reasonable
doubt.[11] Accordingly, the CA affirmed the Decision of the RTC, finding

13
accused-appellant guilty of the complex crime of double murder, with the
following modifications:

WHEREFORE, premises considered, the appeal is


hereby DISMISSED, although the decision of the lower court is
hereby MODIFIED, in that: The accused Bernardino Gaffud, Jr. is
hereby foundGUILTY of the complex crime of double murder, and
is hereby sentenced to the supreme penalty of Death. He is also
ordered to pay the legal heirs of the victims: (1) P100,000.00 or
P50,000.00 for each victim, as civil indemnity for the death of the
victims; (2) P100,000.00 or P50,000.00 for each victim, as moral
damages; and (3) P10,000.00 as nominal damages plus costs.
SO ORDERED.[12]

Pursuant to Section 13, Rule 124 of the Rules of Court, as amended by A.M.
No. 00-5-03-SC dated September 28, 2004, the case was elevated to this
Court for review.
On the first assigned error, we concur with the CA that the failure to prove
conspiracy in this case is not fatal.
The rule is that in the absence of evidence showing the direct participation of
the accused in the commission of the crime, conspiracy must be established by
clear and convincing evidence in order to convict the accused.[13] In the case at
bar, however, we hold that the direct participation of accused-appellant in the
killing of the victims, Manuel Salvador and Analyn Salvador, was established
beyond doubt by the evidence of the prosecution. Hence, a finding of
conspiracy in this instance is not essential for the conviction of accused-
appellant.

On the second assigned error, we uphold the finding of both courts a


quo that the evidence proffered by the prosecution, although circumstantial in
nature, leads to the conclusion that accused-appellant is the perpetrator of the
act resulting in the death of the victims.

It is well-settled that circumstantial evidence is sufficient to sustain a


conviction if (i) there is more than one circumstance; (ii) the facts from which
the inference is derived are proven; and (iii) the combination of all
circumstances is such as to produce conviction beyond reasonable doubt.[14]

In this case, the following facts or circumstances were proven:

(i) Accused-appellant was near the place of the incident just a


few minutes before the crime was committed. Captain Potado
Bollang testified that he saw the accused-appellant at the riverbank,
about 100 meters from the house of the victims, coming to and fro,
allegedly looking for his boat, when in fact, Captain Bollang knew that
accused-appellant did not own one.[15]

(ii) Accused-appellant, together with two unidentified persons,


was near the house of the victims at the time it was on
fire. Accused-appellant was identified by Orly Salvador as one of the
three men he saw about 5 meters from the house of his uncle, Manuel
Salvador, while it was burning. Previously, he heard two gunshots as
he was on his way towards the said house. He also saw appellant
fleeing with the other malefactors, while holding a flashlight.[16] His
testimony was corroborated by the admitted testimony of Dan
Dangpal who said that he heard two gunshots while he was at his

14
home, which was near that of the victims. When he went out, he also
heard men laughing, and saw them fleeing from the burning house,
illumined by a flashlight.[17]

(iii) Accused-appellant was in a hurry to leave the place of the


incident without giving any help to his kumpare Manuel Salvador
and the latters daughter, Analyn. Orly Salvador testified that he
saw accused-appellant holding a flashlight, in a hurry to leave the
burning house of the victim, going towards the direction of the
river.[18]

(iv) Accused-appellant had a motive to kill the victims because of


the complaint filed by Manuel Salvadors wife, Dominga Salvador,
and the fact that he owed Manuel Salvador some money. Dominga
Salvador testified that she had filed a complaint against accused-
appellant and his brother in their barangay for their act of
slaughtering her pig.Aside from this, in the morning of the same
fateful day, she went to the house of accused-appellant aiming to
collect her husbands share in the profits for the construction of
thebarangay hall they had built, but the accused-appellant only told
her that he and his in-law would see her husband later that day.[19]
These circumstances, when taken together, are enough to produce the
conclusion that accused-appellant was responsible for the killing of
the victims by means of burning them inside their house.

Moreover, we sustain the following observation of the CA that against the


convincing evidence of the prosecution, accused-appellants defense of denial
and alibi must fail:

The Court finds incredible appellants story that after seeing


the blaze across his house, he merely slept with his in-laws
without investigating. The Court finds it against human nature for
one to sleep soundly during a fire occurring just 50-80 metes from
ones house, even though the blaze is occurring across a river. Also,
appellant muse know, after seeing the location of the blaze, that
the house of his pare, or close friend, was in danger, and his
natural reaction at least was to verify the object of the
conflagration. Appellants story that he only slept soundly after
seeing the blaze is therefore unbelievable, and taints the credibility
of his alibi.

Another telling factor on the appellants defense is his


flight. Appellant admitted that in his testimony that he fled Wasid,
Nagtipunan, Quirino after he was investigated at the Municipal
Hall, (TSN, June 3, 2002, p. 19). Appellant said he fled because of
threats from the Ilongots. However, appellant said it never entered
his mind to report the threats on him. Appellants explanation fails
to convince. It bears stressing that appellant fled right after being
investigated and questioned by police authorities, and during the
time that the preliminary investigation of the case was
ongoing. This is highly suspicious, as such time is the best time for
him to defend his innocence, if he is indeed innocent. As it is,
appellant was arrested in San Vicente, Jones, Isabela, a remote
barangay by the elements of the NBI, (Id., at 23; reverse of p. 19,

15
Records). Flight is consistently held as and indication of guilt,
(People v. Magaro, 291 SCRA 601 [1998]). There is no showing why
such conclusion should not be made in this case.[20]

We now go to whether or not accused-appellant should be held liable for


two (2) separate counts of murder or for the complex crime of double murder.

Article 48 of the Revised Penal Code (RPC), as amended, reads:

ARTICLE 48. Penalty for complex crimes. When a single act


constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty
for the most serious crime shall be imposed, the same to be
applied in its maximum period.

In a complex crime, although two or more crimes are actually committed, they
constitute only one crime in the eyes of the law as well as in the conscience of
the offender. Hence, there is only one penalty imposed for the commission of a
complex crime.[21]

There are two kinds of complex crime. The first is known as compound
crime, or when a single act constitutes two or more grave or less grave
felonies. The second is known as complex crime proper, or when an offense is a
necessary means for committing the other.[22]

The classic example of the first of kind is when a single bullet results in
the death of two or more persons. A different rule governs where separate and
distinct acts result in a number killed. Deeply rooted is the doctrine that when
various victims expire from separate shots, such acts constitute separate and
distinct crimes.[23]

In the landmark case People v. Guillen,[24] the Court held that the single
act of throwing a grenade at President Roxas resulting in the death of another
person and injuring four others produced the complex crime of murder and
multiple attempted murders. Under Article 248 of the RPC, murder is
committed when a person is killed by means of explosion.Applying Article 48 of
the RPC, the penalty for the crime committed is death, the maximum penalty
for murder, which is the graver offense.

More recently, in People v. Carpo et al.,[25] we held that the single act of
hurling a grenade into the bedroom of the victims causing the death of three
persons and injuries to one person constituted the complex crime of multiple
murder and attempted murder. Also, in People v. Comadre,[26] we held:

The underlying philosophy of complex crimes in the Revised


Penal Code, which follows the pro reo principle, is intended to favor
the accused by imposing a single penalty irrespective of the crimes
committed. The rationale being, that the accused who commits two
crimes with single criminal impulse demonstrates lesser perversity
than when the crimes are committed by different acts and several
criminal resolutions.

The single act by appellant of detonating a hand grenade


may quantitatively constitute a cluster of several separate and
distinct offenses, yet these component criminal offenses should be
considered only as a single crime in law on which a single penalty

16
is imposed because the offender was impelled by a single criminal
impulse which shows his lesser degree of perversity.

In light of these precedents, we hold that the single act of accused-


appellant burning the house of Manuel Salvador, with the main objective
of killing the latter and his daughter, Analyn Salvador, resulting in their
deaths resulted in the complex crime of double murder. Under Article 248
of the RPC, murder is committed by means of fire. Since the maximum penalty
imposed for murder was death, when the case was pending in the CA, the CA
correctly imposed the penalty of death for the complex crime of double murder
instead of the two death penalties imposed by the RTC for two counts of
murder. In view, however, of the passage of Republic Act No. 9346 (otherwise
known as An Act Prohibiting the Imposition of Death Penalty in the Philippines),
we reduce the penalty of death to reclusion perpetua with no eligibility for
parole.[27]

Anent the award of damages, we increase the award of civil indemnity by


the CA for the death of the victims from P100,000 or P50,000 for each victim,
to P150,000 or P75,000 for each victim in accordance with prevailing
jurisprudence.[28]

As to the deletion of exemplary damages by the CA, we reinstate the


award by the RTC of exemplary damages in the amount of P50,000, or P25,000
for each victim.

By and of itself, nighttime is not an aggravating circumstance. It


becomes aggravating only when: (1) it is especially sought by the offender; or
(2) it is taken advantage of by him; or (3) it facilitates the commission of the
crime by ensuring the offender's immunity from capture.[29] In this case, the
RTC correctly appreciated nighttime as aggravating considering that nighttime
was especially sought by accused-appellant to carry out his evil plan. Evidence
shows that accused-appellant waited for nighttime to consummate his plan. It
should be noted that accused-appellant was seen lurking near the house of the
victims earlier in the evening. The fact that he brought with him a flashlight
clearly shows that he intended to commit the crime in darkness.

We sustain the award by the CA of moral damages in the amount


of P100,000, or P50,000 for each victim, in view of the grief and sorrow suffered
by the heirs of the victims. We likewise affirm the award of nominal damages in
the amount of P10,000 for the value of the burned house as sufficiently
explained by the RTC and affirmed by the CA.

IN VIEW WHEREOF, we hereby AFFIRM the March 31, 2005 decision of


the CA in CA-G.R. CR-HC No. 00060 with the following MODIFICATIONS:

(1) the penalty of death imposed on accused-appellant is REDUCED


to reclusion perpetua without eligibility for parole;

(2) the civil indemnity for the death of the victims is increased
to P150,000, or P75,000 for each victim; and
(3) accused-appellant is ordered to pay exemplary damages in the amount
of P50,000, or P25,000 for each victim.

SO ORDERED.

17
G.R. No. L-1477 January 18, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIO
GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A.
Carreon for appellee.
PER CURIAM, J.:

This case is before us for review of, and by virtue of appeal from, the judgment
rendered by the Court of First Instance of Manila in case No. 2746, whereby
Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable
doubt of the crime of murder and multiple frustrated murder, as charged in the
information, and is sentenced to the penalty of death, to indemnify the of the
deceased Simeon Valera (or Barrela) in the sum of P2,000 and to pay the costs.

Upon arraignment the accused entered a plea of not guilty to the charges
contained in the information.

Then the case was tried in one of the branches of the Court of First Instance of
Manila presided over by the honorable Buenaventura Ocampo who, after the
submission of the evidence of the prosecution and the defense, rendered
judgment as above stated.

In this connection it should be stated that, at the beginning of the trial and
before arraignment, counsel de oficiofor the accused moved that the mental
condition of Guillen be examined. The court, notwithstanding that it had found
out from the answers of the accused to questions propounded to him in order
to test the soundness of his mind, that he was not suffering from any mental
derangement, ordered that Julio Guillen be confined for Hospital, there to be
examined by medical experts who should report their findings accordingly. This
was done, and, according to the report of the board of medical experts,
presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio
Guillen was not insane. Said report (Exhibit L), under the heading
"Formulation and Diagnosis," at pages 13 and 14, reads:

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission.


There was not a single moment during his whole 24 hours daily, that he
was not under observation.

The motive behind the commission of the crime is stated above. The
veracity of this motivation was determined in the Narcosynthesis. That
the narco-synthesis was successful was checked up the day after the
test. The narco-synthesis proved not only reveal any conflict or complex
that may explain a delusional or hallucinatory motive behind the act.

Our observation and examination failed to elicit any sign or symptom of


insanity in Mr. Julio C. Guillen. He was found to be intelligent, always
able to differentiate right from wrong, fully aware of the nature of the
crime he committed and is equally decided to suffer for it in any manner
or form.

His version of the circumstances of the crime, his conduct and


conversation relative thereto, the motives, temptations and provocations
that preceded the act, were all those of an individual with a sound mind.

18
On the other hand he is an man of strong will and conviction and once
arriving at a decision he executes, irrespective of consequences and as in
this case, the commission of the act at Plaza Miranda.

What is of some interest in the personality of Julio C. Guillen is his


commission of some overt acts. This is seen not only in the present
instance, but sometime when an employee in la Clementina Cigar
Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to
abuse the women cigar makers, and felt it his duty to defend them. One
time he ran after a policeman with a knife in hand after being provoked
to a fight several times. He even challenged Congressman Nueno to a
fight sometime before when Mr. Nueno was running for a seat in the
Municipal Board of the City of Manila, after hearing him deliver one of
his apparently outspoken speeches.

All these mean a defect in his personality characterized by a weakness of


censorship especially in relation to rationalization about the
consequences of his acts.

In view of the above findings it is our considered opinion that Julio C.


Guillen is not insane but is an individual with a personality defect which
in Psychiatry is termed, Constitutional Psychopathic Inferiority.

Final Diagnosis

Not insane: Constitutional Psychopathic Inferiority, without psychosis.

In view of the above-quoted findings of the medical board, and notwithstanding


the contrary opinion of one Dr. Alvarez, who was asked by the defense to give
his opinion on the matter, the court ruled that Guillen, not being insane, could
be tired, as he was tired, for the offenses he committed on the date in question.

THE FACTS

Upon careful perusal of the evidence and the briefs submitted by counsel for
the accused, the Solicitor General and their respective memoranda, we find
that there is no disagreement between the prosecution and the defense, as to
the essential facts which caused the filing of the present criminal case against
this accused. Those facts may be stated as follows:

On the dates mentioned in this decision, Julio Guillen y Corpus, although not
affirmed with any particular political group, has voted for the defeated
candidate in the presidential elections held in 1946. Manuel A. Roxas, the
successful candidate, assumed the office of President of the Commonwealth
and subsequently President of the President of the Philippine Republic.
According to Guillen, he became disappointed in President Roxas for his
alleged failure to redeem the pledges and fulfill the promises made by him
during the presidential election campaign; and his disappointment was
aggravated when, according to him, President Roxas, instead of looking after
the interest of his country, sponsored and campaigned for the approval of the
so-called "parity" measure. Hence he determined to assassinate the President.

After he had pondered for some time over the ways and means of assassinating
President Roxas, the opportunity presented itself on the night of March 10,
1947, when at a popular meeting held by the Liberal Party at Plaza de Miranda,
Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his

19
wife and daughter and surrounded by a number of ladies and gentlemen
prominent in government and politics, stood on a platform erected for that
purpose and delivered his speech expounding and trying to convince his
thousand of listeners of the advantages to be gained by the Philippines, should
the constitutional amendment granting American citizens the same rights
granted to Filipino nationals be adopted.

Guillen had first intended to use a revolver for the accomplishment of his
purpose, but having lost said firearm, which was duly licensed, he thought of
two hand grenades which were given him by an American soldier in the early
days of the liberation of Manila in exchange for two bottles of whisky. He had
likewise been weighing the chances of killing President Roxas, either by going
to Malacañan, or following his intended victim in the latter's trips to provinces,
for instance, to Tayabas (now Quezon) where the President was scheduled to
speak, but having encountered many difficulties, he decided to carry out his
plan at the pro-parity meeting held at Plaza de Miranda on the night of March
10, 1947.

On the morning of that he went to the house of Amando Hernandez whom he


requested to prepare for him a document (Exhibit B), in accordance with their
pervious understanding in the preceding afternoon, when they met at the
premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting
held there. On account of its materially in this case, we deem it proper to quote
hereunder the contents of said document. An English translation (Exhibit B-2)
from its original Tagalog reads:

FOR THE SAKE OF A FREE PHILIPPINES

I am the only one responsible for what happened. I conceived it, I


planned it, and I carried it out all by myself alone. It took me many days
and nights pondering over this act, talking to my own conscience, to my
God, until I reached my conclusion. It was my duty.

I did not expected to live long; I only had on life to spare. And had I
expected to lives to spare, I would not have hesitated either ton sacrifice
it for the sake of a principle which was the welfare of the people.

Thousands have died in Bataan; many more have mourned the loss of
their husbands, of their sons, and there are millions now suffering. Their
deeds bore no fruits; their hopes were frustrated.

I was told by my conscience and by my God that there was a man to be


blamed for all this: he had deceived the people, he had astounded them
with no other purpose than to entice them; he even went to the extent of
risking the heritage of our future generations. For these reasons he
should not continue any longer. His life would mean nothing as
compared with the welfare of eighteen million souls. And why should I
not give up my life too if only the good of those eighteen million souls.

These are the reasons which impelled me to do what I did and I am


willing to bear up the consequences of my act. I t matters not if others
will curse me. Time and history will show, I am sure, that I have only
displayed a high degree of patriotism in my performance of my said act.

Hurrah for a free Philippines.

20
Cheers for the happiness of every Filipino home.

May God pity on me.

Amen.

JULIO C. GUILLEN

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request
of Guillen by his nephew, was handed to him only at about 6 o'clock in the
afternoon of March 10, 1947, for which reason said Exhibit B-1 appears
unsigned, because he was in a hurry for that meeting at Plaza de Miranda.

When he reached Plaza de Miranda, Guillen was carrying two hand grenades
concealed in a paper bag which also contained peanuts. He buried one of the
hand grenades (Exhibit D), in a plant pot located close to the platform, and
when he decided to carry out his evil purpose he stood on the chair on which
he had been sitting and, from a distance of about seven meters, he hurled the
grenade at the President when the latter had just closed his speech, was being
congratulated by Ambassador Romulo and was about to leave the platform.

General Castañeda, who was on the platform, saw the smoking, hissing,
grenade and without losing his presence of mind, kicked it away from the
platform, along the stairway, and towards an open space where the general
thought the grenade was likely to do the least harm; and, covering the
President with his body, shouted to the crowd that everybody should lie down.
The grenade fell to the ground and exploded in the middle of a group of persons
who were standing close to the platform. Confusion ensued, and the crowd
dispersed in a panic. It was found that the fragments of the grenade had
seriously injured Simeon Varela (or Barrela ) — who died on the following day
as the result of mortal wounds caused by the fragments of the grenade
(Exhibits F and F-1) — Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio
Maglalang.

Guillen was arrested by members of the Police Department about two hours
after the occurrence. It appears that one Angel Garcia, who was one spectators
at that meeting, saw how a person who was standing next to him hurled an
object at the platform and, after the explosion, ran away towards a barber shop
located near the platform at Plaza de Miranda. Suspecting that person was the
thrower of the object that exploded, Garcia went after him and had almost
succeeded in holding him, but Guillen offered stiff resistance, got loose from
Garcia and managed to escape. Garcia pursued him, but some detectives,
mistaking the former for the real criminal and the author of the explosion,
placed him under arrest. In the meantime, while the City Mayor and some
agents of the Manila Police Department were investigating the affair, one
Manuel Robles volunteered the information that the person with whom Angel
Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was
acquainted with Julio Guillen for the previous ten years and had seen each
other in the plaza a few moments previous to the explosion.

The police operatives interrogated Garcia and Robles, and Julio Guillen was,
within two hours after the occurrence, found in his home at 1724 Juan Luna
Street, Manila, brought to the police headquarters and identified by Angel
Garcia, as the same person who hurled towards the platform the object which
exploded and whom Garcia tried to hold when he was running away.

21
During the investigation conducted by the police he readily admitted his
responsibility, although at the same time he tried to justify his action in
throwing the bomb at President Roxas. He also indicated to his captors the
place where he had hidden his so called last will quoted above and marked
Exhibit B, which was then unsigned by him and subsequently signed at the
police headquarters.

Re-enacting the crime (Exhibit C), he pointed out to the police where he had
buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of
witnesses he signed a statement which contained his answers to question
propounded to him by Major A. Quintos of the Manila Police, who investigated
him soon after his arrest (Exhibit E). From a perusal of his voluntary
statement, we are satisfied that it tallies exactly with the declarations and
made by him on the witness stand during the trial of this case.

THE ISSUES

In the brief submitted by counsel de oficio for this appellant, several errors are
assigned allegedly committed by the trial court, namely: first, "in finding the
appellant guilty of murder for the death of Simeon Varela"; second, "in
declaring the appellant guilty of the complex crime of murder and multiple
frustrated murder"; third, "in applying sub-section 1 of article 49 of the Revised
Penal Code in determining the penalty to be imposed upon the accused";
and fourth, "in considering the concurrence of the aggravating circumstances of
nocturnity and of contempt of public authorities in the commission of crime."

The evidence for the prosecution, supported by the brazen statements made by
the accused, shows beyond any shadow of doubt that, when Guillen attended
that meeting, carrying with him two hand grenades, to put into execution his
preconceived plan to assassinate President Roxas, he knew fully well that, by
throwing one of those two hand grenades in his possession at President Roxas,
and causing it to explode, he could not prevent the persons who were around
his main and intended victim from being killed or at least injured, due to the
highly explosive nature of the bomb employed by him to carry out his evil
purpose.

Guillen, testifying in his own behalf, in answer to questions propounded by the


trial judge (page 96 of transcript) supports our conclusion. He stated that he
performed the act voluntarily; that his purpose was to kill the President, but
that it did not make any difference to him if there were some people around the
President when he hurled that bomb, because the killing of those who
surrounded the President was tantamount to killing the President, in view of
the fact that those persons, being loyal to the President being loyal to the
President, were identified with the latter. In other word, although it was not his
main intention to kill the persons surrounding the President, he felt no
conjunction in killing them also in order to attain his main purpose of killing
the President.

The facts do not support the contention of counsel for appellant that the latter
is guilty only of homicide through reckless imprudence in regard to the death
of Simeon Varela and of less serious physical injuries in regard to Alfredo Eva,
Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be
sentenced to the corresponding penalties for the different felonies committed,
the sum total of which shall not exceed three times the penalty to be imposed
for the most serious crime in accordance with article 70 in relation to article 74
of the Revised Penal Code.

22
In throwing hand grenade at the President with the intention of killing him, the
appellant acted with malice. He is therefore liable for all the consequences of
his wrongful act; for in accordance with article 4 of the Revised Penal Code,
criminal liability is incurred by any person committing felony (delito) although
the wrongful act done be different from that which he intended. In criminal
negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice. (People vs. Sara,
55 Phil., 939.) In the words of Viada, "in order that an act may be qualified as
imprudence it is necessary that either malice nor intention to cause injury
should intervene; where such intention exists, the act should qualified by the
felony it has produced even though it may not have been the intention of the
actor to cause an evil of such gravity as that produced.' (Viada's Comments on
the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of reckless
imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is
wilfully done, a mistake in the identity of the intended victim cannot be
considered as reckless imprudence. (People vs. Gona, 54 Phil., 605)

Squarely on the point by counsel is the following decision of the Supreme Court
of Spain:

Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a


comprar tabaco, y habiendose negado este a darselo al fiado, se retira a
quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto
de hora, hallandose el estanquero despachando a C, se oye la detonacion
de un arma de fuego disparada por A desde la calle, quedando muertos
en el acto C y el estanquero; supuesta la no intencion en A de matar a C
y si solo al estanquero, cabe calificar la muerte de este de homicidio y la
de c de imprudencia temeraria? — La Sala de lo Criminal de la
Auudiencia de Granada lo estimo asi, y condeno al procesado a catorse
anos de reclusion por el homivcidio y a un año de prision correctional
por la imprudencia. Aparte de que la muerte del estanquero debio
calificarse de assesinato y no de homicidio, por haberse ejecutado con
aleviosa. es evidente que la muerte de C, suponiendo que no se
propusiera ejecutaria el procesado, no pudo calificarse de imprudencia
teme raria, sino que tambien debio declararsele responsable de la misma,
a tenor de lo puesto en este apartado ultimo del articulo; y que siendo
ambas muertes producidas por un solo hecho, o sea por un solo disparo,
debio imponerse al reo la pena del delito de asesinato en el grado
maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de
muerte. Se ve, pues, claramente que en el antedicha sentencia, aparte de
otros articulos del Codigo, se infringio por la Sala la disposicion de este
apartado ultimo del articulo muy principalmente, y asi lo declaro el
Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I
Viada, 5th Ed., p. 42.)

Article 48 of the Revised Penal Code provides as follows:

Art. 48. Penalty for Complex Crimes. — When a single act constitutes two
or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime
shall be imposed, the same to be applied in its maximum period.

We think it is the above-quoted article and not paragraph 1 of article 49 that is


applicable. The case before us is clearly governed by the first clause of article
48 because by a single act, that a throwing highly explosive hand grenade at

23
President Roxas, the accused committed two grave felonies, namely: (1)
murder, of which Simeon Varela was the victim; and (2) multiple attempted
murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and
Emilio Maglalang were the injured parties.

The killing of Simeon Varela was attended by the qualifying circumstance of


treachery. In the case of People vs. Mabug-at, supra, this court held that the
qualifying circumstance of treachery may be properly considered, even when
the victim of the attack was not the one whom the defendant intended to kill, if
it appears from the evidence that neither of the two persons could in any
manner put up defense against the attack, or become aware of it. In the same
case it was held that the qualifying circumstance of premeditation may not be
properly taken into the account when the person whom the defendant
proposed to kill was different from the one who became his victim.

There can be no question that the accused attempted to kill President Roxas by
throwing a hand grenade at him with the intention to kill him, thereby
commencing the commission of a felony by over acts, but he did not succeed in
assassinating him "by reason of some cause or accident other than his own
spontaneous desistance." For the same reason we qualify the injuries caused
on the four other persons already named as merely attempted and not
frustrated murder.

In this connection, it should be stated that , although there is abundant proof


that , in violation of the provisions of article 148 of the Revised Penal Code, the
accused Guillen has committed among others the offense of assault upon a
person in authority, for in fact his efforts were directed towards the execution
of his main purpose of eliminating President Roxas for his failure to redeem his
electoral campaign promises, by throwing at him in his official capacity as the
Chief Executive of the nation the hand grenade in question, yet, in view of the
appropriate allegation charging Guillen with the commission of said offense, we
shall refrain making a finding to that effect.

The complex crimes of murder and multiple attempted murder committed by


the accused with the single act of throwing a hand grenade at the President,
was attended by the various aggravating circumstances alleged in the
information, without any mitigating circumstance. But we do not deem it
necessary to consider said aggravating circumstances because in any event
article 48 of the Revised Penal Code above-quoted requires that the penalty for
the most serious of said crimes be applied in its maximum period. The penalty
for murder is reclusion temporalin its maximum period to death. (Art. 248.)

It is our painful duty to apply the law and mete out to the accused the extreme
penalty provided by it upon the facts and circumstances hereinabove narrated.

The sentence of the trial court being correct, we have no alternative but to
affirm it, and we hereby do so by a unanimous vote. The death sentence shall
be executed in accordance with article 81 of the Revised Penal Code, under
authority of the Director of Prisons, on such working day as the trial court may
fix within 30 days from the date the record shall have been remanded. It is so
ordered.

[G.R. No. 132676. April 4, 2001]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME CARPO, OSCAR
IBAO, WARLITO IBAO and ROCHE IBAO, accused-appellants.
DECISION

24
PER CURIAM:
The accused might as well have borrowed the famous line of
Shakespeare How this world is given to lying![1] - when they impute error to the
trial court for relying on the testimony of a single witness in convicting them of
multiple murder complexed with attempted murder for the death of Florentino
Dulay, Norwela Dulay and Nissan Dulay, and the wounding of Noemi Dulay.[2]
The challenged testimony of witness Ruben Meriales follows:[3] On 25
August 1996 at about 8:00 o'clock in the evening while he was watching
television with his family his dogs barked. His mother who was apprehensive
that their cow might be stolen prodded him to check the disturbance. To allay
her fears he stood up, took his flashlight and trudged the unpaved path
towards his cow that was tied to a mango tree. Then the noise grew louder thus
arousing his suspicion that something was really wrong. After transferring his
cow nearer to his house, he went inside the kitchen, stood atop the concrete
washbasin, hid himself behind the bamboo slats and peeped outside to
observe. The darkness helped conceal him from outside view while the light
from the two (2) bulbs positioned at about three (3) meters from where he stood
filtered through the slats and illumined the surroundings. There was also moon
in the sky.
A few minutes later, he saw barangay captain Jaime Carpo together with
Warlito Ibao suspiciously stooping near his barn. He knew Jaime and Warlito
very well. Jaime was his uncle and Warlito lived in his neighborhood. Warlito's
son Roche was also there; he was standing by the mango tree. They were all
looking in the direction of Florentino Dulay's house which was about a meter to
the south from where he was. He also saw Oscar Ibao, another son of Warlito,
striding towards Dulay's hut. As soon as he reached the hut Oscar lifted
the sawali mat near the wall and hurled something inside. Oscar then scurried
off towards the nearby creek with Roche following him. Seconds later, a loud
explosion shook the entire neighborhood and Teresita Dulay's screams broke
into the night.
Ruben Meriales, rushed outside. He ran towards Florentino's hut but was
deterred by darkness. He returned home to take his flashlight and raced back
to lend aid to Teresita. Inside the hut he was stunned by the terrifying gore
that greeted him - a bloodied Florentino cradled in the arms of his weeping
widow, Norwela and Nissan lying side by side on a cot both doused in blood,
and a motionless Norma whose head was oozing with blood.
Realizing the exigency of the situation, he left the crime scene to borrow the
jeepney of Brgy. Kagawad Edgardo Marquez for the hapless victims. The
neighbors milling around at once gave up hope on Florentino so that only
Norwela, Nissan and Noemi were loaded in the jeepney and rushed to the
Eastern Pangasinan District Hospital. On their way, Norwela who had injuries
on her chest and lower appendage died. Nissan who was five (5) years old and
the youngest of the victims died later due to "shock from pains" caused by the
shrapnel wounds in her left shoulder, abdomen and lower extremities.[4] Noemi
luckily survived. Her attending physician, Dr. Emiliano Subido, testified that
Noemi was semi-conscious and vomiting although ambulatory at the time he
examined her. But due to the seriousness of her wounds and the hospital's
lack of facilities she was taken to another hospital in Dagupan City.[5]
In the course of their investigation, the policemen questioned the people
who might have witnessed the carnage. Fearful however that the culprits would
return, Ruben Meriales refused to give any statement but intimated to Police
Officer Guillermo Osio that he would go to the police station after the burial.

25
On 4 September 1996, or a week later, Ruben kept his promise and went to
the police station where he gave his statement to Police Officer Osio. He named
Jaime Carpo, Warlito lbao, Oscar lbao and Roche Ibao as the perpetrators of
the crime. He further said that Florentino was killed because he was about to
testify against Roche Ibao for the murder of his brother Delfin Meriales.[6]
On 3 October 1996, solely on the basis of Ruben's testimony, a criminal
complaint for the murder of Florentino Dulay and his two (2) daughters
Norwela, and Nissan as well as the frustrated murder of his daughter Noemi
was filed against Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche
Ibao. Warrants for their immediate arrest were issued by the municipal circuit
trial court.
On 25 October 1996 Jaime Carpo was taken into custody by the police,
while Roche Ibao eluded arrest until 9 December 1996 when he was
apprehended by police officers in La Union. With Roche's arrest, Oscar and
Warlito realized the futility of hiding and surrendered themselves to the
National Bureau of Investigation (NBI) in La Union.
At the trial, the prosecution presented Ruben, Noemi, Dr. Rosalina O.
Victorio, Dr. Emiliano Subido and Police Officers Virgilio dela Cruz, Jovencio
Tapac and Guillermo Osio as witnesses.
Police Officer Osio testified that on the night of 25 August 1996 after
receiving a report of an explosion in Brgy. Baligayan, he together with Police
Officers Julius Aurora, Ricardo Lugares and Jovencio Tapac immediately
responded. They were able to gather several grenade shrapnels and a grenade
shifting lever from the crime scene. He spoke with the weeping Teresita Dulay
who told him that she suspected the accused of having perpetrated the
assault. He likewise conferred with Ruben Meriales who named the same set of
suspects and who promised to give his statement to the police after the funeral.
After speaking with Teresita and Ruben, he summoned his colleagues to go
with him to Warlito Ibao's house which was just across the road. Warlitos
house was dark and its front door was locked. He called out but there was no
answer. They then proceeded to Oscar's house which was also padlocked and
unoccupied. He went to Roche's house and peeped inside before they
left.[7] Against their positive identification by Ruben, the four (4) accused
interposed alibi claiming that they were somewhere else when the Dulay hut
was blasted. They likewise assailed Ruben's testimony for being a fabrication
and insisted that he lied to get back at them because Roche was a suspect in
the killing of his brother Delfin Meriales. Jaime and his wife Veronica Carpo
were one in testifying that in the evening of 25 August 1995 Jaime was at home
in Brgy. Libsong, a hundred and fifty (150) meters away from the house of the
Dulays in Brgy. Baligayan. When he heard the loud explosion, he summoned
his tanods to check whether the blast happened within their barangay. When
he learned that the explosion occurred in the adjoining Brgy. Baligayan, he
went home to sleep. Brgy. Baligayan is separated from his barangay by a creek
and could be reached in ten (10) minutes. However, on the night of the
incident, the creek was neck deep such that one had to make a detour through
a mountainous route for about thirty (30) minutes to reach Brgy. Baligayan.[8]
Jaime testified that Ruben implicated him because the latter was angry at
him. Ruben's grudge supposedly started when Jaime sided with the Ibaos in
the murder case instituted by the Merialeses against Roche for the death of
Delfin Meriales. As a matter of fact on 10 December 1996 while he was
incarcerated at the Balungao District Jail, Ruben supposedly visited him
asking his forgiveness for having named him as one of the perpetrators of the

26
crime. Ruben subsequently pleaded with him to reveal the names of those
responsible but when he claimed ignorance, Ruben left in a huff.
Warlito, Oscar and Roche Ibao testified that on the night of the explosion
their family was having a farewell party for the family's only girl Maribel Ibao
who was leaving for Hongkong. They heard the blast but they did not bother to
check. They denied having heard the police officers call for them an hour after
the explosion. Roche further asserted that he did not have a house in Brgy.
Baligayan as reported because he lived with his parents-in-law in Brgy.
Libsong. However, on the night of the blast, he slept at his parents' house as all
of his siblings and their families were there. He only learned of the bloodbath
the following morning when they went home to his in-laws. His wife Jovelyn
corroborated his testimony in the same manner that Remedios supported the
story of her husband Warlito.[9]
In convicting Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao of the
multiple murder of Florentino, Norwela and Nissan Dulay and the attempted
murder of Noemi Dulay the trial Court gave full credit to the testimony of
Ruben.[10] It accepted his straightforward testimony and ruled that "at no
instance throughout the twin testimonies of Meriales did the Court notice a
twitch of falsehood on his lips."[11] Accordingly, in accordance with Sec. 6, RA
7659, and Art. 48 of The Revised Penal Code the trial court imposed upon all of
the accused the supreme penalty of death and ordered them to solidarily
indemnify the heirs of the deceased as well as Noemi Dulay in the amount of
P600,000.00.[12]
Forthwith, the case was elevated to this Court for automatic review. After
the filing of briefs, the accused filed an Addendum to Appellant's Brief urging
that the favorable results of their lie detector tests with the NBI be admitted
into the records.[13]
A lie detector test is based on the theory that an individual will undergo
physiological changes, capable of being monitored by sensors attached to his
body, when he is not telling the truth. The Court does not put credit and faith
on the result of a lie detector test inasmuch as it has not been accepted by the
scientific community as an accurate means of ascertaining truth or
deception.[14]
The explosion by means of a hand grenade on the night of 25 August 1996
resulting in the death of Florentino, Norwela and Nissan Dulay and in the
wounding of Noemi Dulay is an admitted fact. The identity of the perpetrators,
as tenaciously questioned by the accused, depends upon the credibility of
Ruben Meriales.
In this appeal, accused-appellants challenge the veracity of the testimony of
Ruben Meriales primarily on two (2) grounds: first, Ruben's testimony in court
is different from and is contradictory to his affidavit of 4 October 1996;
and second, Ruben is not a disinterested witness because he has a grudge
against the Ibaos. Consistent with giving due deference to the observations of
the trial court on credibility of witnesses, we agree with the court a quo when it
believed Ruben Meriales more than the defense witnesses.[15] Indeed, the trial
court is best equipped to make an assessment of witnesses, and its factual
findings are generally not disturbed on appeal unless it has overlooked,
misunderstood or disregarded important facts,[16] which is not true in the
present case.
The twin arguments therefore raised by accused-appellants against the
testimony of Ruben Meriales are devoid of merit. A scrutiny of the records
reveals that his testimony is not inconsistent with his affidavit of 4 October

27
1996 inasmuch as the former merely supplied the details of the event which
the latter failed to disclose. But assuming that there was any inconsistency, it
is settled that whenever an affidavit contradicts a testimony given in court the
latter commands greater respect.[17] Such inconsistency is unimportant and
would not even discredit a fallible witness.[18] The mere fact that Ruben
admitted harboring resentment against the Ibaos for the murder of his brother
Delfin does not confirm that he fabricated his story. His frankness in admitting
his resentment against the Ibaos should even be considered in his
favor.[19] There is likewise nothing unnatural in Ruben's attitude of concealing
himself behind the kitchen wall instead of warning the Dulays of the looming
danger to their lives. It is a well-known fact that persons react differently to
different situations - there may be some who will respond violently to an
impending danger while there may be others who will simply assume a
cravenly demeanor. In this case, Ruben was ruled by his fear rather than by
his reason, but for this alone, his credibility should not be doubted.
Apropos Jaime's imputation that Ruben had admitted to him while in jail
that he lied in his testimony, we find this accusation farcical as nothing was
ever offered in support thereof. The lone corroborative testimony, which was
that of Roche, does not inspire belief since Roche himself admitted overhearing
the conversation while Jaime together with other prisoners was constructing a
hut outside of his cell at about three (3) meters away. As correctly hinted by
the prosecution, the noise generated by the construction made it unlikely for
Roche to hear conversations three (3) meters away.[20]
The defense proffered by the accused is alibi. But this is futile. By his own
admission, Jaime was only a hundred and fifty (150) meters away from the
scene of the crime. In fact, it would only take him thirty (30) minutes, at the
most, to be at the place of the Dulays.
More so for the Ibaos who acknowledged that they were having a party just
a stone's throw away from the crime scene at the time of the
explosion. Curiously though, if they were indeed reveling inside their house on
that fateful night, then we cannot comprehend why they did not go out to
investigate after hearing the blast. Besides, it was rather strange for the Ibaos
not to have joined their neighbors who had instantaneously milled outside to
view the mayhem. Their conduct indeed betrayed them.
Further, the immediate flight and tarriance of the Ibaos to La Union until
Roche's arrest cannot but demonstrate their guilt and desire to evade
prosecution.[21]
The trial court also correctly ruled that accused-appellants conspired in
perpetrating the offense charged. From the detailed account of Ruben, Jaime
and Warlito positioned themselves near the hay barn while Roche casually
stood by the mango tree. As observed by the trial court, the presence of Jaime,
Warlito and Roche inescapably gave encouragement and a sense of security to
Oscar, the group's preceptor. Surely, the latter was emboldened to commit the
crime knowing that his co-conspirators were not far behind.
Under the doctrine enunciated in People v. Tayo,[22] the crime committed
may otherwise be more approriately denominated as murder qualified by
explosion rather than by treachery. However, since it was treachery that is
alleged in the Information and appreciated by the trial court, the explosion of
the grenade which resulted in the death of Florentino, Norwela and Nissan, and
the wounding of Noemi can only be multiple murder complexed with attempted
murder.[23] The crime committed against Noemi Dulay was correctly
denominated by the trial court as attempted murder considering that none of
her injuries was fatal. Her attending physician even made conflicting

28
statements in the assessment of her wounds, to wit: although he said that
Noemi could have died from the shrapnel wound in her head, he specifically
ruled out the possibility of "intercerebral hemorrhage"[24] and despite the
seriousness of the possible complications of her injuries she would suffer from
physical incapacity for only ten (10) to fourteen (14) days.
As none of her wounds was severe as to cause her death, accused-
appellants not having performed all the acts of execution that would have
brought it about, the crime is only attempted murder.[25]
Since the three (3) murders and attempted murder were produced by a
single act, namely, the explosion caused by the hurling of a grenade into the
bedroom of the Dulays, the case comes under Art. 48 of The Revised Penal
Code on complex crimes. Article 48 provides that the penalty for the more
serious crime, which in the present case is reclusion perpetua to death, should
be applied in its maximum period. As the crime was complexed, the death
penalty was properly imposed by the trial court.
At this point, we take exception to the court a quo's award of damages in
the "negotiated amount of P600,00.00." It appears that under the auspices of
the trial court counsel for the defense entered into an oral compromise with the
public prosecutor, which was subsequently ratified by the private complainant,
limiting the amount of civil liability to P600,000.00. We note the discourse
between the court and the counsel for both parties regarding the award.
PROS. CORPUZ: x x x x (W)e would like to enter into stipulation the civil aspect
of the case.
COURT: Are the accused confident that they could be acquitted in this
case? Atty Sanglay?
ATTY. SANGLAY: I think so, your Honor.
COURT: What about Atty. Rafael?
ATTY. RAFAEL: We are confident, your Honor.
COURT: All right. So you can easily stipulate. First of all, how much do you
want Fiscal?
PROS. CORPUZ: P1,282,740.00, your Honor x x x x
COURT: x x x x Agree gentlemen of the defense?
ATTY. SANGLAY: P600,000.00, your Honor.
COURT: Do you agree Fiscal?
PROS. CORPUZ: Yes, your Honor.
COURT: All right so P600,000.00 is the agreed liquidated amount in case of
conviction without necessarily having to interpret this stipulation as admission
of guilt on the part of any of the accused. All right so we will dispense with the
testimony on the civil aspect x x x x
COURT: x x x x Are you the private complainant in this case?
TERESITA DULAY: Yes, sir.
COURT: If the accused get convicted and I will hold them severally liable for
you of damages in the liquidated sum of P600,000.00 as agreed upon by the
counsel, will you be satisfied? x x x x
TERESITA: Yes, sir.
COURT: So let that be of record. Will you sign the note so that there will be
evidence.
(At this juncture private complainant Teresita Dulay affixed her signature at
the bottom right margin of the stenographic notes page 2 hereof).[26]
Article 1878 of the Civil Code and Sec. 23 of Rule 138 of the Rules of Court
set forth the attorney's power to compromise. Under Art. 1878 of the Civil
Code, a special power of attorney is necessary "to compromise, to submit
questions to arbitration, to renounce the right to appeal from a judgment, to

29
waive objections to the venue of an action or to abandon a prescription already
acquired." On the other hand, Sec. 23, Rule 138 of the Rules of Court provides,
"(a)ttorneys have authority to bind their clients in any case by any agreement
in relation thereto made in writing, and in taking appeal, and in all matters of
ordinary judicial procedure, but they cannot, without special authority,
compromise their clients' litigation or receive anything in discharge of their
clients' claims but the full amount in cash."
The requirements under both provisions are met when there is a clear
mandate expressly given, by the principal to his lawyer specifically authorizing
the performance of an act.[27] It has not escaped our attention that in the
present case counsel for both parties had no special power of attorney from
their clients to enter into a compromise. However, insofar as Teresita was
concerned, she was apprised of the agreement and in fact had signed her name
as instructed by the court, thereby tacitly ratifying the same. As for accused-
appellants, the aforecited dialogue between the court and counsel does not
show that they were ever consulted regarding the proposed settlement. In the
absence of a special power of attorney given by accused-appellants to their
counsel, the latter can neither bind nor compromise his clients' civil
liability. Consequently, since Atty. Sanglay and Atty. Rafael had no specific
power to compromise the civil liability of all accused-appellants, its approval by
the trial court which did not take the precautionary measures to ensure the
protection of the right of accused-appellants not to be deprived of their property
without due process of law, could not legalize it. For being violative of existing
law and jurisprudence, the settlement should not be given force and effect.
In light of the foregoing, the award of damages must be set aside and a new
one entered with all the circumstances of the case in mind. For the death of
Florentino, Norwela and Nissan Dulay, civil indemnity at P50,000.00 each or a
total amount of P50,000.00 is awarded to their heirs. This is in addition to the
award of moral damages at an aggregate amount of P150,000.00 for their
emotional and mental anguish. With respect to Noemi, an indemnity of
P30,000.00 would be just and proper. All taken, an award of P330,000.00 is
granted.
Four (4) members of the Court maintain their position that RA 7659,
insofar as it prescribes the death penalty, is unconstitutional; nevertheless
they submit to the ruling of the Court, by a majority vote, that the law is
constitutional and that the death penalty should be accordingly imposed.
WHEREFORE, the assailed Decision of the trial court finding accused-
appellants JAIME CARPO, OSCAR IBAO, WARLITO IBAO and ROCHE IBAO
GUILTY of the complex crime of multiple murder with attempted murder and
sentencing them to the supreme penalty of death is AFFIRMED with the
MODIFICATION that they are ordered to pay the heirs of the deceased
Florentino, Norwela and Nissan, all surnamed Dulay, P50,000.00 as death
indemnity and P50,000.00 as moral damages for each death or an aggregate
amount of P300,00.00. In addition, accused-appellants are ordered to pay
Noemi Dulay P30,000.00 as indemnity for her attempted murder. Costs against
accused- appellants.
In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised
Penal Code, upon finality of this Decision, let the records of this case be
forthwith forwarded to the Office of the President for possible exercise of
executive clemency or pardoning power.
SO ORDERED
[G.R. No. 153559. June 8, 2004]

30
PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE, GEORGE
COMADRE and DANILO LOZANO, appellants.
DECISION
PER CURIAM:
Appellants Antonio Comadre, George Comadre and Danilo Lozano were
charged with Murder with Multiple Frustrated Murder in an information which
reads:

That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva
Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, with intent to kill and by means of treachery and evident
premeditation, availing of nighttime to afford impunity, and with the use of an
explosive, did there and then willfully, unlawfully and feloniously lob a hand
grenade that landed and eventually exploded at the roof of the house of Jaime
Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT
AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy
Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to
suffer shrapnel wounds on their bodies, per the medical certificates; thus, to
the latter victims, the accused commenced all the acts of execution that would
have produced the crime of Multiple Murder as consequences thereof
but nevertheless did not produce them by reason of the timely and able
medical and surgical interventions of physicians, to the damage and prejudice
of the deceaseds heirs and the other victims.

CONTRARY TO LAW.[1]

On arraignment, appellants pleaded not guilty.[2] Trial on the merits then


ensued.
As culled from the records, at around 7:00 in the evening of August 6,
1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,[3] Rey Camat and
Lorenzo Eugenio were having a drinking spree on the terrace of the house of
Roberts father, Barangay Councilman Jaime Agbanlog, situated in Barangay
San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of
the terrace listening to the conversation of the companions of his son.[4]
As the drinking session went on, Robert and the others noticed appellants
Antonio Comadre, George Comadre and Danilo Lozano walking. The three
stopped in front of the house. While his companions looked on, Antonio
suddenly lobbed an object which fell on the roof of the terrace. Appellants
immediately fled by scaling the fence of a nearby school.[5]
The object, which turned out to be a hand grenade, exploded ripping a hole
in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey
Camat and Lorenzo Eugenio were hit by shrapnel and slumped unconscious on
the floor.[6] They were all rushed to the San Jose General Hospital in Lupao,
Nueva Ecija for medical treatment. However, Robert Agbanlog died before
reaching the hospital.[7]
Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy
on the cadaver of Robert Agbanlog, certified that the wounds sustained by the
victim were consistent with the injuries inflicted by a grenade explosion and
that the direct cause of death was hypovolemic shock due to hand grenade
explosion.[8] The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog
and Gerry Bullanday sustained shrapnel injuries.[9]

31
SPO3 John Barraceros of the Lupao Municipal Police Station, who
investigated the scene of the crime, recovered metallic fragments at the terrace
of the Agbanlog house. These fragments were forwarded to the Explosive
Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus
Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2
hand grenade.[10]
Denying the charges against him, appellant Antonio Comadre claimed that
on the night of August 6, 1995, he was with his wife and children watching
television in the house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that he was surprised
when three policemen from the Lupao Municipal Police Station went to his
house the following morning of August 7, 1995 and asked him to go with them
to the police station, where he has been detained since.[11]
Appellant George Comadre, for his part, testified that he is the brother of
Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied any
involvement in the grenade-throwing incident, claiming that he was at home
when it happened. He stated that he is a friend of Rey Camat and Jimmy
Wabe, and that he had no animosity towards them whatsoever. Appellant also
claimed to be in good terms with the Agbanlogs so he has no reason to cause
them any grief.[12]
Appellant Danilo Lozano similarly denied any complicity in the crime. He
declared that he was at home with his ten year-old son on the night of August
6, 1995. He added that he did not see Antonio and George Comadre that night
and has not seen them for quite sometime, either before or after the
incident. Like the two other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.[13]
Antonios father, Patricio, and his wife, Lolita, corroborated his claim that
he was at home watching television with them during the night in
question.[14] Josie Comadre, Georges wife, testified that her husband could not
have been among those who threw a hand grenade at the house of the
Agbanlogs because on the evening of August 6, 1995, they were resting inside
their house after working all day in the farm.[15]
After trial, the court a quo gave credence to the prosecutions evidence and
convicted appellants of the complex crime of Murder with Multiple Attempted
Murder,[16] the dispositive portion of which states:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano


GUILTY beyond reasonable doubt of the complex crime of Murder with
Multiple Attempted Murder and sentencing them to suffer the
imposable penalty of death;

2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay


jointly and severally the heirs of Robert Agbanlog P50,000.00 as
indemnification for his death, P35,000.00 as compensatory damages
andP20,000.00 as moral damages;

3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano


to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday
and Jaime Agbanlog P30,000.00 as indemnity for their attempted
murder.

32
Costs against the accused.

SO ORDERED.

Hence, this automatic review pursuant to Article 47 of the Revised Penal


Code, as amended. Appellants contend that the trial court erred: (1) when it did
not correctly and judiciously interpret and appreciate the evidence and thus,
the miscarriage of justice was obviously omnipresent; (2) when it imposed on
the accused-appellants the supreme penalty of death despite the evident lack
of the quantum of evidence to convict them of the crime charged beyond
reasonable doubt; and (3) when it did not apply the law and jurisprudence for
the acquittal of the accused-appellants of the crime charged.[17]
Appellants point to the inconsistencies in the sworn statements of Jimmy
Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the
perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang
Salaysay on August 7, 1995 at the hospital wherein they did not categorically
state who the culprit was but merely named Antonio Comadre as a
suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one
of the culprits because he saw the latters ten year-old son bring something in
the nearby store before the explosion occurred.
On August 27, 1995, or twenty days later, they went to the police station to
give a more detailed account of the incident, this time identifying Antonio
Comadre as the perpetrator together with George Comadre and Danilo Lozano.
A closer scrutiny of the records shows that no contradiction actually exists,
as all sworn statements pointed to the same perpetrators, namely, Antonio
Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the
first statement was executed a day after the incident, when Jimmy Wabe, Rey
Camat and Lorenzo Eugenio were still in the hospital for the injuries they
sustained. Coherence could not thus be expected in view of their condition. It is
therefore not surprising for the witnesses to come up with a more exhaustive
account of the incident after they have regained their equanimity. The lapse of
twenty days between the two statements is immaterial because said period
even helped them recall some facts which they may have initially overlooked.
Witnesses cannot be expected to remember all the details of the harrowing
event which unfolded before their eyes. Minor discrepancies might be found in
their testimony, but they do not damage the essential integrity of the evidence
in its material whole, nor should they reflect adversely on the witness
credibility as they erase suspicion that the same was perjured.[18] Honest
inconsistencies on minor and trivial matters serve to strengthen rather than
destroy the credibility of a witness to a crime, especially so when, as in the
instant case, the crime is shocking to the conscience and numbing to the
senses.[19]
Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely against
appellants. Absent evidence showing any reason or motive for prosecution
witnesses to perjure, the logical conclusion is that no such improper motive
exists, and their testimony is thus worthy of full faith and credit.
The trial court is likewise correct in disregarding appellants defense of alibi
and denial. For the defense of alibi to prosper, the accused must prove not only
that he was at some other place at the time of the commission of the crime but
also that it was physically impossible for him to be at the locus delicti or within
its immediate vicinity.[20]

33
Apart from testifying with respect to the distance of their houses from that
of Jaime Agbanlogs residence, appellants were unable to give any explanation
and neither were they able to show that it was physically impossible for them
to be at the scene of the crime. Hence, the positive identification of the
appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and
Gerry Bullanday prevails over their defense of alibi and denial.[21]
It was established that prior to the grenade explosion, Rey Camat, Jaime
Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the culprits,
namely, appellants Antonio Comadre, George Comadre and Danilo Lozano
because there was a lamppost in front of the house and the moon was
bright.[22]
Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of
the Regional Trial Court of San Jose City, Branch 38 erred in rendering the
decision because he was not the judge who heard and tried the case is not well
taken.
It is not unusual for a judge who did not try a case to decide it on the basis
of the record for the trial judge might have died, resigned, retired, transferred,
and so forth.[23] As far back as the case ofCo Tao v. Court of Appeals[24] we have
held: The fact that the judge who heard the evidence is not the one who
rendered the judgment and that for that reason the latter did not have the
opportunity to observe the demeanor of the witnesses during the trial but
merely relied on the records of the case does not render the judgment
erroneous. This rule had been followed for quite a long time, and there is no
reason to go against the principle now.[25]
However, the trial courts finding of conspiracy will have to be
reassessed. The undisputed facts show that when Antonio Comadre was in the
act of throwing the hand grenade, George Comadre and Danilo Lozano merely
looked on without uttering a single word of encouragement or performed any
act to assist him. The trial court held that the mere presence of George
Comadre and Danilo Lozano provided encouragement and a sense of security
to Antonio Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. Settled is the rule that to
establish conspiracy, evidence of actual cooperation rather than mere
cognizance or approval of an illegal act is required.[26]
A conspiracy must be established by positive and conclusive evidence. It
must be shown to exist as clearly and convincingly as the commission of the
crime itself. Mere presence of a person at the scene of the crime does not make
him a conspirator for conspiracy transcends companionship.[27]
The evidence shows that George Comadre and Danilo Lozano did not have
any participation in the commission of the crime and must therefore be set
free. Their mere presence at the scene of the crime as well as their close
relationship with Antonio are insufficient to establish conspiracy considering
that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an
act of giving moral assistance to his criminal act. The ratiocination of the trial
court that their presence provided encouragement and sense of security to
Antonio, is devoid of any factual basis. Such finding is not supported by the
evidence on record and cannot therefore be a valid basis of a finding of
conspiracy.

34
Time and again we have been guided by the principle that it would be better
to set free ten men who might be probably guilty of the crime charged than to
convict one innocent man for a crime he did not commit.[28] There being no
conspiracy, only Antonio Comadre must answer for the crime.
Coming now to Antonios liability, we find that the trial court correctly ruled
that treachery attended the commission of the crime. For treachery to be
appreciated two conditions must concur: (1) the means, method and form of
execution employed gave the person attacked no opportunity to defend himself
or retaliate; and (2) such means, methods and form of execution was
deliberately and consciously adopted by the accused. Its essence lies in the
adoption of ways to minimize or neutralize any resistance, which may be put
up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the
unsuspecting victims were having a drinking spree. The suddenness of the
attack coupled with the instantaneous combustion and the tremendous impact
of the explosion did not afford the victims sufficient time to scamper for safety,
much less defend themselves; thus insuring the execution of the crime without
risk of reprisal or resistance on their part. Treachery therefore attended the
commission of the crime.
It is significant to note that aside from treachery, the information also
alleges the use of an explosive[29] as an aggravating circumstance. Since both
attendant circumstances can qualify the killing to murder under Article 248 of
the Revised Penal Code,[30] we should determine which of the two
circumstances will qualify the killing in this case.
When the killing is perpetrated with treachery and by means of explosives,
the latter shall be considered as a qualifying circumstance. Not only does
jurisprudence[31] support this view but also, since the use of explosives is the
principal mode of attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will then be relegated
merely as a generic aggravating circumstance.[32]
Incidentally, with the enactment on June 6, 1997 of Republic Act No.
8294[33] which also considers the use of explosives as an aggravating
circumstance, there is a need to make the necessary clarification insofar as the
legal implications of the said amendatory law vis--vis the qualifying
circumstance of by means of explosion under Article 248 of the Revised Penal
Code are concerned.Corollary thereto is the issue of which law should be
applied in the instant case.
R.A. No. 8294 was a reaction to the onerous and anachronistic penalties
imposed under the old illegal possession of firearms law, P.D. 1866, which
prevailed during the tumultuous years of the Marcos dictatorship. The
amendatory law was enacted, not to decriminalize illegal possession of firearms
and explosives, but to lower their penalties in order to rationalize them into
more acceptable and realistic levels.[34]
This legislative intent is conspicuously reflected in the reduction of the
corresponding penalties for illegal possession of firearms, or ammunitions and
other related crimes under the amendatory law. Under Section 2 of the said
law, the penalties for unlawful possession of explosives are also lowered.
Specifically, when the illegally possessed explosives are used to commit any of
the crimes under the Revised Penal Code, which result in the death of a
person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be
considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as
amended by Section 2 of R.A. 8294 now reads:

35
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby
further amended to read as follows:

Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of


Explosives. The penalty of prision mayor in its maximum period to reclusion
temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be
imposed upon any person who shall unlawfully manufacture, assemble, deal
in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other
explosives, including but not limited to pillbox, molotov cocktail bombs, fire
bombs, or other incendiary devices capable of producing destructive effect on
contiguous objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal
Code or special law with the use of the aforementioned explosives,
detonation agents or incendiary devises, which results in the death of any
person or persons, the use of such explosives, detonation agents or
incendiary devices shall be considered as an aggravating circumstance.
(shall be punished with the penalty of death is DELETED.)

x x x x x x x x x.

With the removal of death as a penalty and the insertion of the term xxx as
an aggravating circumstance, the unmistakable import is to downgrade the
penalty for illegal possession of explosives and consider its use merely as an
aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal
possession of firearms and explosives. Also, Congress clearly intended RA No.
8294 to consider as aggravating circumstance, instead of a separate offense,
illegal possession of firearms and explosives when such possession is used to
commit other crimes under the Revised Penal Code.
It must be made clear, however, that RA No. 8294 did not amend the
definition of murder under Article 248, but merely made the use of explosives
an aggravating circumstance when resorted to in committing any of the crimes
defined in the Revised Penal Code. The legislative purpose is to do away with
the use of explosives as a separate crime and to make such use merely an
aggravating circumstance in the commission of any crime already defined in
the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed
explosives as one of the aggravating circumstances specified in Article 14 of the
Revised Penal Code. Like the aggravating circumstance of explosion in
paragraph 12, evident premeditation in paragraph 13, or treachery in
paragraph 16 of Article 14, the new aggravating circumstance added by RA No.
8294 does not change the definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be
made applicable in this case. Before the use of unlawfully possessed explosives
can be properly appreciated as an aggravating circumstance, it must be
adequately established that the possession was illegal or unlawful, i.e., the
accused is without the corresponding authority or permit to possess. This
follows the same requisites in the prosecution of crimes involving illegal
possession of firearm[35] which is a kindred or related offense under P.D. 1866,
as amended. This proof does not obtain in the present case. Not only was it not
alleged in the information, but no evidence was adduced by the prosecution to
show that the possession by appellant of the explosive was unlawful.

36
It is worthy to note that the above requirement of illegality is borne out by
the provisions of the law itself, in conjunction with the pertinent tenets of legal
hermeneutics.
A reading of the title[36] of R.A. No. 8294 will show that the qualifier
illegal/unlawful ...possession is followed by of firearms, ammunition, or
explosives or instruments... Although the term ammunition is separated from
explosives by the disjunctive word or, it does not mean that explosives are no
longer included in the items which can be illegally/unlawfully possessed. In
this context, the disjunctive word or is not used to separate but to signify a
succession or to conjoin the enumerated items together.[37] Moreover, Section 2
of R.A. 8294,[38] subtitled: Section 3. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Explosives, clearly refers to
the unlawful manufacture, sale, or possession of explosives.
What the law emphasizes is the acts lack of authority. Thus, when the
second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294
speaks of the use of the aforementioned explosives, etc. as an aggravating
circumstance in the commission of crimes, it refers to those explosives, etc.
unlawfully manufactured, assembled, dealt in, acquired, disposed or possessed
mentioned in the first paragraph of the same section. What is per
se aggravating is the use of unlawfully manufactured or possessed
explosives. The mere use of explosives is not.
The information in this case does not allege that appellant Antonio
Comadre had unlawfully possessed or that he had no authority to possess the
grenade that he used in the killing and attempted killings. Even if it were
alleged, its presence was not proven by the prosecution beyond reasonable
doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the
averment of aggravating circumstances for their application.[39]
The inapplicability of R.A. 8294 having been made manifest, the crime
committed is Murder committed by means of explosion in accordance with
Article 248 (3) of the Revised Penal Code. The same, having been alleged in the
Information, may be properly considered as appellant was sufficiently informed
of the nature of the accusation against him.[40]
The trial court found appellant guilty of the complex crime of murder with
multiple attempted murder under Article 48 of the Revised Penal Code, which
provides:

Art. 48. Penalty for complex crimes. When a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means of
committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period.

The underlying philosophy of complex crimes in the Revised Penal Code,


which follows the pro reo principle, is intended to favor the accused by
imposing a single penalty irrespective of the crimes committed. The rationale
being, that the accused who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are committed by
different acts and several criminal resolutions.
The single act by appellant of detonating a hand grenade may quantitatively
constitute a cluster of several separate and distinct offenses, yet these
component criminal offenses should be considered only as a single crime in law
on which a single penalty is imposed because the offender was impelled by a
single criminal impulse which shows his lesser degree of perversity.[41]

37
Under the aforecited article, when a single act constitutes two or more
grave or less grave felonies the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period irrespective of the
presence of modifying circumstances, including the generic aggravating
circumstance of treachery in this case.[42] Applying the aforesaid provision of
law, the maximum penalty for the most serious crime (murder) is death. The
trial court, therefore, correctly imposed the death penalty.
Three justices of the Court, however, continue to maintain the
unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty.
Nevertheless, they submit to the ruling of the majority to the effect that the law
is constitutional and that the death penalty can be lawfully imposed in the case
at bar.
Finally, the trial court awarded to the parents of the victim Robert Agbanlog
civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory
damages and P20,000.00 as moral damages. Pursuant to existing
jurisprudence[43] the award of civil indemnity is proper. However, the actual
damages awarded to the heirs of Robert Agbanlog should be modified,
considering that the prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses.[44]
The award of moral damages is appropriate there being evidence to show
emotional suffering on the part of the heirs of the deceased, but the same must
be increased to P50,000.00 in accordance with prevailing judicial policy.[45]
With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey
Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the
injuries they sustained. We find this award inappropriate because they were
not able to present a single receipt to substantiate their claims. Nonetheless,
since it appears that they are entitled to actual damages although the amount
thereof cannot be determined, they should be awarded temperate damages of
P25,000.00 each.[46]
WHEREFORE, in view of all the foregoing, the appealed decision of the
Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-16(95)
is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex
crime of Murder with Multiple Attempted Murder and sentenced to suffer the
penalty of death. He is ordered to pay the heirs of the victim the amount of
P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00
as actual damages and likewise ordered to pay the surviving victims, Jaime
Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as
temperate damages for the injuries they sustained. Appellants Gregorio
Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish
conspiracy, and they are hereby ordered immediately RELEASED from
confinement unless they are lawfully held in custody for another
cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of
the Revised Penal Code, upon finality of this Decision, let the records of this
case be forwarded to the Office of the President for possible exercise of
pardoning power.
SO ORDERED.
[G.R. No. 115054-66. September 12, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE MENIL,
JR., accused-appellant.
DECISION
GONZAGA-REYES, J.:

38
On appeal is the joint decision[1] dated 16 August 1993, of the Regional
Trial Court of Surigao City, Branch 30, in Criminal Case Nos. 2948, 2956,
3000, 3001, 3013, 3020, 3021, 3022, 3026, 3028, 3052, 3053, 3054, and
3058, convicting accused-appellant Vicente Boy Menil, Jr. of one (1) count of
large scale swindling and thirteen (13) counts of estafa.
The facts of the case are as follows:
Vicente Menil, Jr. and his wife, Adrian B. Menil, were the proprietors of a
business operating under the name ABM Appliance and Upholstery with offices
at the Denso Building, Capitol Road, Surigao City. On July 15, 1989, they,
through ushers and sales executives, began soliciting investments from the
general public in Surigao City and its neighboring towns. They assured would-
be investors that their money would be multiplied ten-fold after fifteen (15)
calendar days. In other words, if a person invested P100.00, they claimed that
after fifteen (15) calendar days the investor would get the amount of P1,000.00
in return. Each investor may invest a maximum amount of P1000.00 for which
they were reportedly assured a return of P10,000.00. With respect to their
ushers and sales executives, they were given a 10% commission from the total
amounts they remitted to the business.
The people who invested in the business were issued coupons which merely
indicated the date of entry, the due date of the investment, the amount given,
the amount to be received, the name and address of the investor and the name
of the sales executive. Sales executives appointed by accused-appellant were
given these coupons which they, in turn, gave to the people they solicited from
as proof of their investment. The sales executives likewise wrote down on a
piece of yellow pad paper the details of the investments they received during a
particular day. These sales executives were required to remit the investments
they collected daily at the offices of ABM Appliance and Upholstery by
presenting the money and the yellow pad containing the names of the
investors. A representative of ABM Appliance and Upholstery then received the
money and signed the yellow pad paper. The sales executives were then
immediately given their 10% commission from the amount remitted. When the
investments matured, a lump sum representing the total return of the
investments were given to the sales executives who were given the task of
distributing them to the investors they dealt with.
Initially, the operation started with a few investors who invested small
amounts. On the day of the start of the operations, for example, less than
P200.00 were invested at their offices. Gradually, the amounts invested and the
number of depositors increased. On June 30, 1989 alone, the business was
able to attract more than 200 investors and the total amount of investments
they received was more than P40,000.00. Because of the small amounts
initially involved, accused-appellant and his wife were able to pay the returns
on the investments as they fell due.
Sometime during the first week of August, 1989, accused-appellant and his
wife, apparently to clothe their operations with legitimacy, caused the
incorporation of their business, under the name ABM Development Center, Inc.
with the Securities and Exchange Commission. As registered under S.E.C. Reg.
No. 167274,[2] the ABM Development Center, Inc. was a non-stock corporation
with twelve (12) incorporators and trustees, including accused-appellant
Vicente Menil, Jr. and his wife, Adriana B. Menil. Adriana B. Menil was
likewise appointed as the treasurer of the non-stock corporation. The
corporation had a total capitalization of P12,000.00 and its purposes, as stated
in its Articles of Incorporation,[3] are as follows:

39
1. To assist in the total development of community members morally,
physically, educationally and economically and socially towards their present
and future progress;
2. To operate, coordinate and/or organize community development centers;
3. To make or coordinate in the making of studies and researches;
4. To solicit, receive, channel and/or distribute donations, economic aids,
grants, investments in money or in kind;
5. To help train community members in newly acquired knowledge, modern
trends and techniques;
6. To promote brotherhood, fellowship and unity among ourselves; and
7. To negotiate, represent, and deal with government and other agencies for
the benefit and in behalf of the members as well as for the community.
On August 15, 1989, accused-appellant and his wife held a meeting with
the sales executives and ushers of the ABM Development Center, Inc. at the
Provincial Convention Center. At this meeting, accused-appellant informed the
sales executives that the business of ABM Development Center, Inc. was
proceeding normally and that investments were coming in. He advised the sales
executives however that beginning that date, all investments accepted by the
business would only have returns of 1:7 which investors will receive after
fifteen (15) working days, excluding weekends and holidays. As such, if a
person gave P100.00, his investment will mature only after fifteen (15) working
days and he will receive only P700.00. This change of policy was contained in a
Memorandum dated August 24, 1989.[4]
After this August 15, 1989 meeting, the sales executives continued
accepting investments from the general public and the offices of accused-
appellant kept on accepting the remittances of the sales executives. By this
time, daily investments amounting to millions of pesos were pouring into the
offices of ABM Development Center, Inc. and payments of the returns became
delayed. Allegedly due to the delay in the counting of the money for release to
investors, the payments which were set for release on August 28, 1989 were
completely paid only on September 18, 1989.
On September 19, 1989, the ABM Development Center, Inc. stopped
releasing payments. The sales investors went to the offices of ABM
Development Center, Inc. to inquire about the release of payments but there
was no one around to address their complaints. The whereabouts of accused-
appellant and his wife was also unknown.
On October 10, 1989, accused-appellant and his wife made an
announcement over the radio that payments were forthcoming and that the
investors should have no cause for alarm. They also repeated their
announcement on television. Despite these assurances and despite repeated
demands made by the investors, accused-appellant released no further
payments and neither did he refund any investment remitted to him. Accused-
appellant and his wife went into hiding in Davao City but eventually they were
arrested by police authorities led by a certain Colonel Panchito.
Consequently, a case for large scale swindling was filed by the City
Prosecutor of Surigao City against the accused-appellant and his
wife. Additionally, twenty cases for estafa were filed against accused-appellant
and his wife by the Provincial Prosecutors Office. Of these twenty (20) cases,
seven (7) were provisionally dismissed on October 21, 1991 for failure to
prosecute.

40
In Criminal Case No. 2948, the information[5] charging accused-appellant
and his wife with the crime of large scale swindling was filed on December 14,
1989. The information in this case reads as follows:

That in or about the month of August, 1989, and/or sometime prior or


subsequent thereto, in the city of Surigao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, did then and there
willfully, unlawfully and feloniously defraud thousands of investors using as
instruments innocent and defrauded sales executives and/or ushers, in the
following manner, to wit: the above-named accused, pretending to possess
credit, property and a secret formula in their pyramiding business scheme,
enticed the general public to invest with ABM Development Center,
Incorporated, thru false manifestations and representations that the amount
they would invest would earn seven hundred percent (700%) after fifteen (15)
working days from date of investment, by which enticing offer, the general
public was persuaded to invest large sums of money thru the innocent sales
executives and/or ushers, amounting to more than ONE HUNDRED
THOUSAND PESOS (P100,000.00), Philippine Currency, which were duly
remitted to and received by the accused, doing business under the name and
style ABM Development Center, Incorporated, which was the front of their
illegal transactions, but the accused once in the possession of the amounts
invested and far from complying with their aforesaid obligation, with deceit
aforethought, misapplied, misappropriated, converted and absconded the
amounts received as investments to their own personal use and benefit and
despite repeated demands made for the payment of the benefits of the
investments and/or the return of the amounts invested, said accused failed
and refused, and still fail and refuse to do so, to the damage and prejudice of
the investors in such sums as may be proven and such other damages as may
be allowed by law.

Contrary to Article 315 of the Revised Penal Code, in relation to paragraph 2 of


Presidential Decree No. 1689.

In Criminal Case No. 2956, accused appellant and his wife were charged
with violation of Article 315 of the Revised Penal Code. The information in this
case reads as follows:

That from July 26, 1989 to September 13, 1989, at Placer, Surigao del Norte,
Philippines, xxx, the above-named accused xxx with deliberate criminal intent
to defraud the general public by pretending to have a huge amount as sinking
fund but later on was found out to be a pyramiding scam, accused Vicente
Menil, Jr., being the Manager, and his wife accused Adriana B. Menil, being the
Treasurer of their association known as ABM Development Center, Inc., xxx
operating on funds solicited from the general public in the form of investments
with the enticing return of 10 times then later reduced to 7 times the
investment after due date and having successfully solicited thru their sales
executive, Zohar Mondaya, the total amount of P610,046.00, did then and
there xxx misappropriate xxx the said amount xxx remitted to them subject to
the condition that xxx after the lapse of 15 working days from remittance, said
investment would be returned in seven folds to the investors, but xxx repeated
demands made xxx said accused failed and refused to pay or give as agreed
upon by them xxx to the damage and prejudice of the investors in the said
amount P610,046.00 xxx resulting to more financial difficulties of the general
public and therefore constitutes economic sabotage that threatens the stability
of the nation.

41
Contrary to Art. 315 of the Revised Penal Code. [6]

Similarly worded informations were filed against the accused-appellant and


his wife in Criminal Case Nos. 3000, 3001, 3013, 3020, 3021, 3022, 3026,
3028, 3052, 3053, 3054, and 3058. These informations likewise charged
accused-appellant and his wife with violations of Article 315 of the Revised
Penal Code and differed only in the amount allegedly swindled, the names of
the complainants and the sales executives, and the time and place where the
alleged swindling occurred.
Accused-appellant and his wife, upon being arraigned on April 4, 1990,
pleaded not guilty to all the charges leveled against them.[7]
In the case for large scale swindling and in the thirteen (13) cases for
estafa, a pre-trial was conducted. The pre-trial order[8] in Criminal Case No.
2948, for large scale swindling, shows the following stipulations:
1. That the accused Vicente Menil, Jr. and Adriana Menil are the
General Manager and Treasurer, respectively of the ABM Appliances
and Upholstery with Assurances and Privileges which later on
changed to ABM Development Center;
2. That the ABM Development Center was operating business in
Surigao City, particularly at the Capitol Road; that it was duly
registered with the Securities and Exchange Commission and was
duly issued a Mayors Permit to operate the same;
3. That the ABM Appliances and Upholstery with Assurances and
Privileges, and later ABM Development Center were merged into one,
under one sanitary permit to operate as one entity;
4. That on August 24, 1989, Vicente Menil, Jr., the General Manager,
issued a Memorandum to all investors thereof regarding the decrease
of the proceeds of the investment from one thousand percent to 700%
so that the P10.00 investment will get only the proceeds of P70.00;
and,
5. That what remain to be proved in the trial on the merits will be
limited only to the names of the sales executives/investors and
amounts of investment.
For the thirteen estafa cases, the following facts were stipulated:
1. That the accused operated the ABM Appliance and Upholstery with
Assurance Privileges and ABM Development Center, Inc., the latter
being duly registered with the Securities and Exchange Commission;
2. That accused Vicente Menil, as General Manager, and Adriana Menil,
as Treasurer, operating through the sales executives who
solicited/received investments from the general public and remitted
to the corporation;
3. That the listed sales executives and the amounts claimed remitted
and received are qualifiedly admitted; and
4. That the operation of ABM stopped on September 18, 1989.[9]
Thereafter, trial on the merits in the fourteen (14) cases commenced.
During the trial of the case, accused Adrian B. Menil, the wife of accused-
appellant, died of tuberculosis on November 5, 1992 and accordingly, the trial
court dismissed the cases as against her in an Order dated November 12,
1992.[10]

42
In all the fourteen (14) cases before the trial court, the documentary
evidence for the prosecution was similar, consisting mainly of the investment
records containing a listing of remittances made by the sales executives/ushers
of ABM Appliance and Upholstery and ABM Development Center, Inc. Likewise,
the testimonial evidence for the prosecution consisted mainly of the testimonies
of the sales executives/ushers of ABM Appliance and Upholstery and ABM
Development Center, Inc., who testified on the mode of operations, the
respective amounts which they solicited from the public, and the places where
they solicited[11]
In Criminal Case No. 2948, for violation of P.D. 1689, due to the large
number of witnesses listed in the complaint and information (91 in all), the
prosecution and defense agreed to limit the number of witnesses to only four
(4) sales executives.
These witnesses, namely Felicitas Gotostos, Gloria Apale, Wlfredo Lisandra
and Nena Cagna-an, uniformly declared that they were sales executives and
investors appointed by accused-appellant Vicente Menil, Jr. to solicit
investments from people in Surigao City. Witness Felicitas Gatostos claimed
that she remitted a total of P257,180.00. Gloria Apale turned over investments
totalling P1,397,619.00 while Nena Cagna-an claimed to have remitted a total
of P94,120.00. Finally, witness Wilfredo Lisondra allegedly turned over
investments totaling P1,124,358.00. These amounts were listed on sheets of
paper which were marked and acknowledged received by representatives of the
ABM office. These four investments were included in a Summary of Total
Investments presented by the prosecution containing the names of 1,124 sales
executives and/or investors who all in all remitted a total amount of
P45,494,936.00.
For the thirteen (13) estafa cases, the prosecution presented the thirteen
complainants who were sales executives and/or investors of ABM assigned to
the different barangays and municipalities in Surigao del Norte where ABM
collected investments. They all testified on the modus operandi employed by
accused-appellant in conducting his investment business and they identified
documents which showed the names of the investors they solicited from and
the amounts which they remitted to ABM and which remained
unpaid. Following is a summary of the amounts that these witnesses claim as
having been duly received by ABM for investment purposes and which
remained unpaid to date:

CRIMINAL CASE NO. WITNESS PLACE AMOUNT

2956 Zohar Mandaya Placer, Surigao del Norte P610,046.00


3000 Cedronio Cagampang Bacuag, Surigao del Norte 136,670.00
3001 Joseph Lacsamana Brgy. del Rosario, Tubod, P203,850.00
Surigao del Norte
3013 Domingo T. Tejada Brgy. Anislagan, Placer, P 29,070.00
Surigao del Norte
3020 Rosiefe M. Laid Brgy. Sta Cruz, Placer, P114,620.00
Surigao del Norte
3021 Gamaliela Mordeno Brgy. Roxas, Mainit, 447,960.00
Surigao del Norte
3022 Rebecca Mosca Brgy. Poblacion, Mainit, P275,280.00
Surigao del Norte
3026 Patora Decalit Brgy. Sta. Cruz, Placer, 222,120.00
Surigao del Norte
3028 Francisca Tado Tubod, Surigao del Norte P399,650.00

43
3052 Porferia Etac Brgy. Bad-as, Placer, 172,910.00
Surigao del Norte
3053 Leodegaria Paquero Brgy. Marga, Tubod, 148,278.00
Surigao del Norte
3054 Felomina Calamba Tubod, Surigao del Norte P320,000.00
3058 Merlina Silva Brgy. Bad-as, Placer, 500,129.00
Accused Vicente Menil, Jr. put up a common defense in all the cases filed
against him.
He testified that his investment business started on June 15, 1989 in
Surigao City.[12] He insists that his investment business was legitimate as his
corporation was registered with the Securities and Exchange Commission. He
pointed out that under paragraphs 3 and 4 of the Articles of Incorporation of
ABM Development Center, Inc., he was authorized to solicit and receive
investments in money and in kind. He also presented a Mayors Permit which
he claimed authorized him to run the business.[13]
In answer to a question as to how his business operates, the accused-
appellant described it as a rolling system which paid off dividends in the ratio
of one is to ten initially and then one is to seven beginning August 15,
1989.[14] He claimed to have paid off these investments as they matured
beginning June 30, 1989 and that he was able to pay off all investments
received by his office which matured on August 28, 1989 and earlier.[15] He
stated however, that because of the large amounts involved, he was able to pay
off the investments maturing on August 28, 1989 only on September 18, 1989
as the counting of the money alone took two or three days to finish.[16]

He alleged that he stopped giving payments after September 18, 1989 due to
circumstances beyond his control. He claimed that on September 19, 1989, he
and his wife were fetched by a certain Lt. Arab and were brought to the PC
Headquarters where a certain Col. Macatangcop questioned them as to the
delay in the payment of investments. He was then mauled by a certain Lt. Arab
and two sons of Col. Macatangcop when he refused to issue to them a check for
P500,000.00. He was released by Col. Macatangcop only after he issued a
check for P250,000.00 and after he promised that he will not submit himself to
a medical examination.[17]

After his experience with Col. Macatangcop, he proceeded back to his office to
rest and to plan his next course of action. He then went to the Provincial
Hospital in order to have his injuries checked. He was able to secure a medical
certificate attesting to the injuries that he sustained.[18] While at the hospital,
he heard rumors that he was being hunted by the military and so he
transferred to the Miranda Clinic. Thereafter, he went to Toril, Davao City
where he was arrested by a certain Col. Panchito.[19]

He stated that while in Davao City, a certain Sgt. Patino ransacked his
belongings and took away his attache case containing P50,000.00 in cash,
several pieces of jewelry, watches, a camera, and an undisclosed amount in
British pounds and American dollars. All in all, he claimed that he lost a total
of half a million pesos.[20] He further stated that he left around P3,000,000.00
inside a steel cabinet in his office which had been taken into the custody of the
city sheriff. When he checked the contents with the sheriffs office, he stated
that the steel cabinet had been forcibly opened and the money was now
missing.[21]

44
He further alleged that he had money in the Surigao City Banks amounting to
half a million pesos but he gradually withdrew this amount to pay off his
obligations. At this point, he could no longer pay off all his financial obligations
as he had no more money and because he was detained at the Surigao City
jail.[22]

On August 16, 1993, the trial court rendered a joint decision[23] finding
accused-appellant guilty of one count of large scale swindling and thirteen (13)
counts of estafa. The dispositive portion of the joint decision provides, as
follows:

WHEREFORE, this Court hereby finds accused Vicente Menil, Jr. GUILTY
beyond reasonable doubt of Estafa, defined and penalized in Article 315, first
paragraph and Sections 1(b) and 2(a) of the Revised Penal Code, in all the
above-entitled thirteen (13) provincial cases and one (1) city case, and,
accordingly, hereby sentences him, the following penalties:

Crim. Case No. 2948:

The qualified penalty provided for in second paragraph of Section 1,


Presidential Decree No. 1689, for Large Scale Swindling, and metes out an
imprisonment of reclusion perpetua; and to indemnify all the listed investors in
Exhibits PP-1 to PP-2, in the total sum of P45,494,936.00, Exhibit PP; to suffer
the accessory penalties provided for by law; and, to pay the costs.

Crim. Case No. 2956:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-5 to A-188,
in the amount of P624,726.00; to suffer the accessory penalties provided for by
law; and, to pay the costs.

Crim. Case No. 3000:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A to A-27, the
sum of P136,670.00; to suffer the accessory penalties provided for by law; and,
to pay the costs.

Crim. Case No. 3001:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-83,
the sum of P203,850.00; to suffer the accessory penalties provided for by law;
and, to pay the costs.

Crim. Case No. 3013:

An indeterminate penalty of Two (2) years, Four (4) Months of prision


correccional , as the minimum, to Eight (8) years of prision mayor, as the
maximum; to indemnify the investors listed in Exhibits A-1 to A-8 the sum of
P29,070.00; to suffer the accessory penalties provided for by law; and, to
pay the costs.

Crim. Case No. 3020:

45
An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of
reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-126
the sum of P114,620.00; to suffer the accessory penalties provided for by law;
and, to pay the costs.

Crim. Case No. 3021:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-126
the sum of P447,960.00; to suffer the accessory penalties provided for by law;
and, to pay the costs.

Crim. Case No. 3022:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-64 the
sum of P275,280.00; to suffer the accessory penalties provided for by law; and,
to pay the costs.

Crim. Case No. 3026:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-28 the
sum of P222,120.00; to suffer the accessory penalties provided for by law; and,
to pay the costs.

Crim. Case No. 3028:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-74 the
sum of P399,650.00; to suffer the accessory penalties provided for by law; and,
to pay the costs.

Crim. Case No. 3052:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-26 the
sum of P172,910.00; to suffer the accessory penalties provided for by law; and,
to pay the costs.

Crim. Case No. 3053:

An indeterminate penalty of Two (2) Years and Four (4) Months of prision
correccional, as the minimum, to Eight (8) years of prision mayor; to indemnify
the investors listed in Exhibits A-1 to A-17 the sum of P36,970.00; to suffer the
accessory penalties provided for by law; and, to pay the costs.

Crim. Case No. 3054:

An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of


reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-198
the sum of P920,883.00; to suffer the accessory penalties provided for by law;
and, to pay the costs.

Crim. Case No. 3058:

46
An indeterminate penalty of Eight (8) years of prision mayor to Twenty Years of
reclusion temporal; to indemnify the investors listed in Exhibits A-1 to A-150
the sum of P500,129.00; to suffer the accessory penalties provided for by law;
and, to pay the costs;

Without subsidiary imprisonment, in case of insolvency.

Pursuant to Article 70, the penalty of reclusion perpetua shall be served first
and, thereafter, the simultaneous service of the penalties imposed in the
thirteen (13) provincial cases. Provided, however, that the maximum period
shall in no case exceed Forty (40) Years, after applying the three-fold rule
length of time, corresponding to the most severe of the penalties imposed,
which is reclusion perpetua, computed at Thirty (30) years.

The accuseds preventive detention shall be credited in his favor, pursuant to


law.

SO ORDERED.[24]

Hence, this appeal where accused-appellant raises the following assignment


of errors[25]:
I. THE COURT A QUO ERRED IN NOT DECLARING AS PURELY CIVIL THE
LIABILITY OF ACCUSED-APPELLANT TO THE PRIVATE COMPLAINANTS/
INVESTORS.
II. THE COURT A QUO MANIFESTLY ERRED IN CONVICTING ACCUSED-
APPELLANT FOR LARGE SCALE SWINDLING UNDER P.D. 1869 IN CRIM.
CASE NO. 2948 AND ESTAFA IN CRIM. CASE NOS. 2956-3058,
RESPECTIVELY, DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED
BEYOND REASONABLE DOUBT.
We affirm the conviction of accused-appellant.
In convicting accused-appellant of the crimes of Large Scale Swindling
punishable under P.D. 1689 in Criminal Case No. 2948 and estafa in the
thirteen other criminal cases filed against accused-appellant, the trial court
made reference to Article 315, par. 2 (a) of the Revised Penal Code. Under this
provision, swindling or estafa by false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud is committed by
using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business, or imaginary transactions, or
by other similar deceits. The elements of estafa under this penal provision are:
(1) the accused defrauded another by means of deceit and (2) damage or
prejudice capable of pecuniary estimation is caused to the offended party or
third party.[26]
In the case at bench, it is not disputed that the accused-appellant failed to
pay the expected returns of the investments and/or solicitations of the private
complainants. Accused-appellant himself admits that he was not able to pay
the returns on the investments due August 29, 1989 onwards. Neither did he
return the amount of their investments. Thus:
Q: Okay. All right, you know this Crim. Case No. 3053, one Leodegarda
Paquero claims that she had invested the amount of P36,970.00 duly
acknowledged as to have been received by the ABM. Can you tell, Mr. Menil,
what happened to this investment made by the said Leodegarda Paquero?
Court:
What municipality is that?

47
Pros. Calang:
Tubod, Barangay Marga, your Honor please.
Atty. Canoy:
I would like to request counsel to pinpoint your honor please, the amount?
Pros. Calang:
On pages 31-45 inclusive, on record.
Q: What happened to her investment of P36,970.00?
A: It was included in the damage when the business was closed.
Q: Meaning to say, not paid?
A: Not paid, sir.
Q: Even the total amount of investment was not returned?
A: Yes, it was not returned, sir.
Q: In Crim. Case No. 3000, one Cedronio Cagampang claims that he had
invested to the ABM Development Center, Inc. as usher as well as investor in
the amount of P136,670.00 turned over and received by the ABM Development
Center, Incorporated. Kindly tell this Honorable Court what happened to this
investment?
A: This one which was not yet due or arrived to its due date, so this was not
paid.
Atty. Canoy:
Your honor, please, I think there is no need to present the same because it is
admitted, your Honor, that all monies invested and which became due after
August 28 were not received.
Court:
Yes, that is why there is that manifestation. So we will save time the same is
true with the other cases where it was shown that the money were invested and
due after August 28.[27]
What needs to be determined therefore is whether or not the element of
defraudation by means of deceit has been established by the prosecution
beyond reasonable doubt.
Fraud, in its general sense, is deemed to comprise anything calculated to
deceive, including all acts, omissions, and concealment involving a breach of
legal or equitable duty, trust, or confidence justly reposed, resulting in damage
to another, or by which an undue and unconscientious advantage is taken of
another.[28] It is a generic term embracing all multifarious means which human
ingenuity can devise, and which are resorted to by one individual to secure an
advantage over another by false suggestions or by suppression of truth and
includes all surprise, trick, cunning, dissembling and any unfair way by which
another is cheated.[29] On the other hand, deceit is the false representation of a
matter of fact, whether by words or conduct, by false or misleading allegations,
or by concealment of that which should have been disclosed which deceives or
is intended to deceive another so that he shall act upon it to his legal injury.[30]
With these legal doctrines in mind, we hold that the testimonial and
documentary evidence presented by the prosecution, as well as the admissions
made by accused-appellant, sufficiently prove that accused-appellant employed
fraud and deceit upon gullible people to induce them to invest in his business."
The inducement consisted of accused-appellants assurance that money
invested in his business would have returns of 1000%, later reduced to 700%,
after 15 days. Lured by the false promise of quick financial gains on their
investments, the unsuspecting people of Surigao del Norte readily turned over
their hard-earned money to the coffers of ABM.
It has been held that where one states that the future profits or income of
an enterprise shall be a certain sum, but he actually knows that there will be
none, or that they will be substantially less than he represents, the statements

48
constitute an actionable fraud where the hearer believes him and relies on the
statement to his injury.[31] In the case at bench, it is abundantly clear that
ultimately, the profits which accused-appellant promised to his investors would
not be realized. Accused-appellant admitted during his testimony that the
money he used to pay off maturing investments were taken from the
remittances received by ABM Development Center, Inc. Thus:
Q: As far as you can recall as of June 30, 1989, how much investments were
already made or received by your office?
A: More than forty thousand pesos.
Q: Your first due date was June 30, 1989, you said, the returns is estimated to
be more than one thousand pesos?
A: Yes, sir.
Q: Where do you get this one thousand pesos for the investment due on June
30, 1989 is it not that you get it from the investment of the previous days?
A: That is the amount that Im going to use. But I also have my own funds.
Q: How much was your funds as of June 30, 1989?
A: Two Hundred Fifty Thousand (P250,000.00) Pesos.
Q: The investments that were due on July 1, 1989, the money that you are to
pay for these returns were taken from the previous days, correct?
A: Yes, sir.
Q: The same is true with the investments due on July 2, you get all the money
to pay from the investments made in the previous days, correct?
A: Yes, sir.
Q: And the same thing is followed on the days after?
A: Yes, sir.
Q: Your last due date was August 28?
A: Yes, sir.
Q: Again the returns for these date were taken from the previous days, from the
investments of the people from the previous dates?
A: Yes, sir.
xxx
Q: On August 29, were there still investments?
A: There was still investment on that date, sir, but as far as I know there were
so many releases on that day. I paid up to September 18. But on September
19, there was already an incident that happened.
Q: The returns you made of investments on September 18, when was that
investment made?
A: From the previous investments.
Q: My question is: Those amounts you paid on September 18, when was were
those amounts invested, do you agree that it was also fifteen days before?
A: Every due date we completely paid it. Every due date, we paid completely
before going to the next day. Due date, for example, it was delayed because it
was delayed in counting money. For example, the one hundred thousand
pesos, it takes time in counting that one hundred thousand pesos.
Q: Are we to understand from you, Mr. Witness, that the returns of the
investments due on August 28 were already paid on August 28?
A: Yes, sir.
Q: And the money that you used in paying these returns were also taken from
the previous days, from the investments of the people?
A: Yes, sir.[32]
In other words, accused-appellant merely paid the returns of maturing
investments from the remittances of succeeding investors. What accused-
appellant actually offered to the public was a Ponzi Scheme, an unsustainable
investment program that offers extravagantly high returns and pays these

49
returns to early investors out of the capital contributed by later
investors. In People vs. Balasa[33], we had occasion to describe the workings of
the Ponzi Scheme as follows:

Named after Charles Ponzi who promoted the scheme in the 1920s, the original
scheme involved the issuance of bonds which offered 50% interest in 45 days
or a 100% profit if held for 90 days. Basically, Ponzi used the money he
received from later investors to pay extravagant rates of return to early
investors, thereby inducing more investors to place their money with him in the
false hope of realizing this same extravagant rate of return themselves. This
was the very scheme practiced by the Panata Foundation.

However, the Ponzi scheme works only as long as there is an ever-increasing


number of new investors joining the scheme. To pay off the 50% bonds Ponzi
had to come up with one-and-a-half times increase with each round. To pay
100% profit, he had to double the number of investors at each stage, and this
is the reason why a Ponzi scheme is a scheme and not an investment
strategy. The progression it depends upon is unsustainable. The pattern of
increase in the number of participants in the system explains how it is able to
succeed in the short run and, at the same time, why it must fail in the long
run. This game is difficult to sustain over a long period of time because to
continue paying the promised profits to early investors, the operator needs an
ever larger pool of later investors. The idea behind this type of swindle is that
the conman collects his money from his second or third round of investors and
then absconds before anyone else shows up to collect. Necessarily, these
schemes only last weeks, or months at most.

That there was no profit forthcoming can likewise be deduced from the fact
that accused-appellant was not engaged nor authorized to engage in any
lucrative business to finance its operation. On this point, accused-appellant
points out that under the Articles of Incorporation of ABM Development Center,
Inc., he was authorized to make or coordinate in the making of studies and
researches and to solicit, receive, channel and/or distribute donations,
economic aids, grants, investments in money or in kind." Likewise, he
presented a Mayors Permit that he claimed authorized him to engage in the
investment business.
There is no merit in these contentions of accused-appellant. As proven by
the prosecution, the incorporation of the ABM Development Center, Inc. on
August 21, 1989 was undertaken by accused-appellant only to give a
semblance of legitimacy to its illegal operations. Accused-appellant started
receiving investments from the public as early as July 15, 1989 and yet it was
only after he was warned by a representative of the Department of Trade and
Industry that his operation was illegal that he went about with the business of
incorporating his moneymaking scheme.[34] Moreover, as borne out by the
Articles of Incorporation, the ABM Development Center, Inc. was incorporated
as a non-stock corporation. As a non-stock corporation, ABM Development
Center, Inc. may only be formed or organized for charitable, religious,
educational, professional, cultural, fraternal, literary, scientific, social, civic, or
other similar purposes.[35] It may not engage in undertakings, such as the
investment business, where profit is the main or underlying purpose. Although
the non-stock corporation may obtain profits as an incident to its operation,
such profits are not to be distributed among its members but must be used for
the furtherance of its purposes.[36] In the same vein, the Mayors Permit issued
to accused-appellant shows that he was only permitted to act as dealer of

50
appliances and upholstery." The permit did not give accused-appellant
authority to engage in the investment business.
Finally, the fact that accused-appellant could not present any specific
business plan or cite any donations or bequests which he received to finance
his money-making scheme clearly shows that the investment scheme which he
foisted on the unsuspecting public was fraudulent. It must be noted that
according to the Articles of Incorporation of ABM Development Center, Inc., its
paid-up capital was only P11,000.00 and yet it was able to transact business in
terms of millions of pesos. It must likewise be stressed that accused-appellant
refused to answer when asked about the specifics of his business and about
how he would be able to fulfill his obligation of paying the promised exorbitant
rates of return.
In his defense, accused-appellant points to the fact that several investors
were paid the corresponding returns on their investments. This fact, accused-
appellant argues, negates any perceived false pretense or deceit on his part and
as such, his liability, if any should only be civil in nature.
There is no merit in this argument. As previously explained, the payment of
returns to early investors is an integral part of the illegal Ponzi scheme foisted
by accused-appellant on the unsuspecting public. The fact that early investors
were paid the returns on their investments induced more people to participate
in the illegal scheme with the hope of realizing the same extravagant rate of
return. In fact, after word of these payments spread like wildfire, the amount of
investments received by accused-appellant ballooned from thousands of pesos
to several millions of pesos.
The prosecution having proved the two elements of damage and deceit in all
the cases filed against accused-appellant, the trial court thus committed no
error in finding accused-appellant guilty of one count of large scale swindling
and thirteen (13) counts of estafa. The Court notes, however, that the penalties
imposed by the trial court are erroneous.
In Criminal Case No. 2948, accused-appellant was charged with violation
of P.D. 1689 and sentenced to imprisonment of reclusion perpetua. Section 1 of
the said law provides, as follows:

Sec.1. Any person or persons who shall commit estafa or other forms of
swindling as defined in Articles 315 and 316 of the Revised Penal Code, as
amended, shall be punished by life imprisonment to death if the swindling
(estafa) is committed by a syndicate consisting of five or more persons formed
with the intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme, and the defraudation results in the misappropriation of
moneys contributed by stockholders, or members of rural banks,
cooperatives, samahang nayons, or farmers associations, or of funds solicited
by corporations/associations from the general public.

When not committed by a syndicate as above defined, the penalty imposable


shall be reclusion temporal to reclusion perpetua if the amount of the fraud
exceeds 100,000 pesos.

P.D. No. 1689 thus penalizes offenders with life imprisonment to death
regardless of the amount involved, provided that a syndicate committed the
crime. A syndicate is defined in the same law as consisting of five or more
persons formed with the intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme. If the offenders are not members of a
syndicate, they shall nevertheless be held liable for the acts prohibited by the

51
law but they shall be penalized by reclusion temporal to reclusion perpetua if the
amount of the fraud is more than one hundred thousand pesos.
In the instant case, there was no showing by the prosecution that a
syndicate perpetrated the Ponzi scheme. While the prosecution proved that a
non-stock corporation with eleven (11) incorporators, including accused-
appellant and his wife, was involved in the illegal scheme, there was no
showing that these incorporators collaborated, confederated, and mutually
helped one another in directing the corporations activities. In fact, the evidence
for the prosecution shows that it was only accused-appellant and his wife who
had knowledge of and who perpetrated the illegal scheme.
As such, the trial court was correct in convicting accused-appellant under
the second paragraph of Section 1 of P.D. 1689 considering that the amount
swindled by accused-appellant totals P45,494,936.00. The trial court erred,
however, in imposing the penalty of reclusion perpetua. Given the absence of
mitigating or aggravating circumstances, the lesser penalty imposed under the
said paragraph, reclusion temporal, should have been imposed in its medium
period. Applying the Indeterminate Sentence Law, accused-appellant, in
Criminal Case No. 2948, should have been sentenced to an indeterminate
penalty of ten (10) years of prision mayor medium, as minimum, to twenty (20)
years of reclusion temporal medium, as maximum.
The trial court likewise erred in its application of the provisions of Article
315 of the Revised Penal Code and of the Indeterminate Sentence Law in the
imposition of the proper penalties for the thirteen (13) estafa cases.
The penalty for estafa depends on the amount defrauded. Article 315 of the
Revised Penal Code provides that the penalty of prision correccional in its
maximum period to prision mayor in its minimum period (or imprisonment
ranging from 4 years, 2 months, and 1 day to 8 years), if the amount of the
fraud is over P12,000.00 but does not exceed P22,000.00, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period (6 years, 8 months and 21 days to 8 years),
adding one year for each additional P10,000.00 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such case, and in
connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.[37]
Under the Indeterminate Sentence Law, the maximum term of the penalty
shall be that which, in view of the attending circumstances, could be properly
imposed under the Revised Penal Code, and the minimum shall be within the
range of the penalty next lower to that prescribed for the offense.[38] The penalty
next lower should be based on the penalty prescribed by the Code for the
offense, without first considering any modifying circumstance attendant to the
commission of the crime. The modifying circumstances are considered only in
the imposition of the maximum term of the indeterminate sentence.[39]
In computing the penalty for estafa, the fact that the amounts involved
exceed P22,000.00 should not be considered in the initial determination of the
indeterminate penalty; instead the matter should be taken as analogous to
modifying circumstances in the imposition of the maximum term of the full
indeterminate sentence. This interpretation of the law is in accord with the rule
that penal laws should be construed in favor of the accused. Since the penalty
prescribed by law for estafa is prision correccional maximum to prision
mayor minimum, the penalty next lower would then beprision correccional in its
minimum to medium periods. Thus, the minimum term of the indeterminate
sentence should be anywhere within six (6) months and one (1) day to four (4)

52
years and two (2) months while the maximum term of the indeterminate
sentence should at least be six (6) years and one (1) day because the amounts
involved exceeded P22,000.00, plus one (1) year for each additional
P10,000.00.[40] The maximum penalty should not exceed twenty years.
Accordingly, with respect to the cases of estafa filed against accused-
appellant, the applicable periods of imprisonment should, respectively, be as
follows:
In Criminal Case No. 2956, where the amount swindled is P624,726.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3000, where the amount involved is P136,670.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
nineteen (19) years of reclusion temporal as maximum.
In Criminal Case No. 3001, where the amount involved is P203,850.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3013, where the amount involved is P29,070.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum to eight
(8) years of prision mayor as maximum.
In Criminal Case No. 3020, where the amount involved is P114,620.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
seventeen (17) years of reclusion temporal as maximum.
In Criminal Case No. 3021, where the amount involved is P447,960.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3022, where the amount involved is P275,280.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3026, where the amount involved is P222,120.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3028, where the amount involved is P399,650.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3052, where the amount involved is P172,910.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3053, where the amount involved is P36,970.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)

53
years and two (2) months of prision correccional medium, as minimum, to
nine (9) years of prision mayor as maximum.
In Criminal Case No. 3054, where the amount involved is P920,883.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3058, where the amount involved is P500,129.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
The amounts ordered reimbursed to the respective complainants and
investors listed in the documentary exhibits of the prosecution are hereby
affirmed.
WHEREFORE, premises considered, the decision appealed from is hereby
AFFIRMED, subject to the following modifications:
In Criminal Case No. 2948, where the total amount of the fraud is
P45,494,936.00, accused-appellant is hereby sentenced to an indeterminate
penalty of ten (10) years of prision mayor medium, as minimum to twenty (20)
years of reclusion temporal medium, as maximum.
In Criminal Case No. 2956, where the amount swindled is P624,726.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3000, where the amount involved is P136,670.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
nineteen (19) years of reclusion temporal as maximum.
In Criminal Case No. 3001, where the amount involved is P203,850.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3013, where the amount involved is P29,070.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum to eight
(8) years of prision mayor as maximum.
In Criminal Case No. 3020, where the amount involved is P114,620.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
seventeen (17) years of reclusion temporal as maximum.
In Criminal Case No. 3021, where the amount involved is P447,960.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3022, where the amount involved is P275,280.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3026, where the amount involved is P222,120.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)

54
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3028, where the amount involved is P399,650.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3052, where the amount involved is P172,910.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3053, where the amount involved is P36,970.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
nine (9) years of prision mayor as maximum.
In Criminal Case No. 3054, where the amount involved is P920,883.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
In Criminal Case No. 3058, where the amount involved is P500,129.00,
accused-appellant is hereby sentenced to an indeterminate penalty of four (4)
years and two (2) months of prision correccional medium, as minimum, to
twenty (20) years of reclusion temporal as maximum.
The amounts ordered reimbursed to the respective complainants and
investors listed in the documentary exhibits of the prosecution are hereby
affirmed.
SO ORDERED.
G.R. No. 107898 December 19, 1995
MANUEL LIM and ROSITA LIM, petitioners, vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
BELLOSILLO, J.:

MANUEL LIM and ROSITA LIM, spouses, were charged before the Regional
Trial Court of Malabon with estafa on three (3) counts under Art. 315, par. 2
(d), of The Revised Penal Code, docketed as Crim. Cases Nos. 1696-MN to
1698-MN. The Informations substantially alleged that Manuel and Rosita,
conspiring together, purchased goods from Linton Commercial Company, Inc.
(LINTON), and with deceit issued seven Consolidated Bank and Trust Company
(SOLIDBANK) checks simultaneously with the delivery as payment therefor.
When presented to the drawee bank for payment the checks were dishonored
as payment on the checks had been stopped and/or for insufficiency of funds
to cover the amounts. Despite repeated notice and demand the Lim spouses
failed and refused to pay the checks or the value of the goods.

On the basis of the same checks, Manuel and Rosita Lim were also charged
with seven (7) counts of violation of B.P. Blg. 22, otherwise known as
the Bouncing Checks Law, docketed as Crim. Cases Nos. 1699-MN to 1705-MN.
In substance, the Informations alleged that the Lims issued the checks with
knowledge that they did not have sufficient funds or credit with the drawee
bank for payment in full of such checks upon presentment. When presented for
payment within ninety (90) days from date thereof the checks were dishonored
by the drawee bank for insufficiency of funds. Despite receipt of notices of such

55
dishonor the Lims failed to pay the amounts of the checks or to make
arrangements for full payment within five (5) banking days.

Manuel Lim and Rosita Lim are the president and treasurer, respectively, of
Rigi Bilt Industries, Inc. (RIGI). RIGI had been transacting business with
LINTON for years, the latter supplying the former with steel plates, steel bars,
flat bars and purlin sticks which it uses in the fabrication, installation and
building of steel structures. As officers of RIGI the Lim spouses were allowed
30, 60 and sometimes even up to 90 days credit.

On 27 May 1983 the Lims ordered 100 pieces of mild steel plates worth
P51,815.00 from LINTON which were delivered on the same day at their place
of business at 666 7th Avenue, 8th Street, Kalookan City. To pay LINTON for
the delivery the Lims issued SOLIDBANK Check No. 027700 postdated 3
September 1983 in the amount of P51,800.00. 1

On 30 May 1983 the Lims ordered another 65 pieces of mild steel plates worth
P63,455.00 from LINTON which were delivered at their place of business on the
same day. They issued as payment SOLIDBANK Check No. 027699 in the
amount of P63,455.00 postdated 20 August 1983. 2

The Lim spouses also ordered 2,600 "Z" purlins worth P241,800.00 which were
delivered to them on various dates, to wit: 15 and 22 April 1983; 11, 14, 20,
23, 25, 28 and 30 May 1983; and, 2 and 9 June 1983. To pay for the deliveries,
they issued seven SOLIDBANK checks, five of which were —

Check No. Date of Issue Amount

027683 16 July 1983 P27,900.00 3


027684 23 July 1983 P27,900.00 4
027719 6 Aug. 1983 P32,550.00 5
027720 13 Aug. 1983 P27,900.00 6
027721 27 Aug. 1983 P37,200.00 7

William Yu Bin, Vice President and Sales Manager of LINTON, testified that
when those seven (7) checks were deposited with the Rizal Commercial
Banking Corporation they were dishonored for "insufficiency of funds" with the
additional notation "payment stopped" stamped thereon. Despite demand
Manuel and Rosita refused to make good the checks or pay the value of the
deliveries.

Salvador Alfonso, signature verifier of SOLIDBANK, Grace Park Branch,


Kalookan City, where the Lim spouses maintained an account, testified on the
following transactions with respect to the seven (7) checks:

CHECK NO. DATE PRESENTED REASON FOR DISHONOR

027683 22 July 1983 Payment Stopped (PS) 8


027684 23 July 1983 PS and Drawn Against
Insufficient Fund (DAIF) 9
027699 24 Aug. 1983 PS and DAIF 10
027700 5 Sept. 1983 PS and DAIF 11
027719 9 Aug. 1983 DAIF 12
027720 16 Aug. 1983 PS and DAIF 13
027721 30 Aug. 1983 PS and DAIF 14

56
Manuel Lim admitted having issued the seven (7) checks in question to pay for
deliveries made by LINTON but denied that his company's account had
insufficient funds to cover the amounts of the checks. He presented the bank
ledger showing a balance of P65,752.75. Also, he claimed that he ordered
SOLIDBANK to stop payment because the supplies delivered by LINTON were
not in accordance with the specifications in the purchase orders.

Rosita Lim was not presented to testify because her statements would only be
corroborative.

On the basis of the evidence thus presented the trial court held both accused
guilty of estafa and violation of B.P. Blg. 22 in its decision dated 25 January
1989. In Crim. Case No. 1696-MN they were sentenced to an indeterminate
penalty of six (6) years and one (1) day of prision mayor as minimum to twelve
(12) years and one (1) day of reclusion temporal as maximum plus one (1) year
for each additional P10,000.00 with all the accessory penalties provided for by
law, and to pay the costs. They were also ordered to indemnify LINTON in the
amount of P241,800.00. Similarly sentences were imposed in Crim. Cases Nos.
1697-MN and 1698-MN except as to the indemnities awarded, which were
P63,455.00 and P51,800.00, respectively.

In Crim. Case No. 1699-MN the trial court sentenced both accused to a straight
penalty of one (1) year imprisonment with all the accessory penalties provided
for by law and to pay the costs. In addition, they were ordered to indemnify
LINTON in the amount of P27,900.00. Again, similar sentences were imposed
in Crim. Cases Nos. 1700-MN to 1705-MN except for the indemnities awarded,
which were P32,550.00, P27,900.00, P27,900.00, P63,455.00, P51,800.00 and
P37,200.00 respectively. 15

On appeal, the accused assailed the decision as they imputed error to the trial
court as follows: (a) the regional Trial Court of malabon had no jurisdiction over
the cases because the offenses charged ere committed outside its territory; (b)
they could not be held liable for estafa because the seven (7) checks were
issued by them several weeks after the deliveries of the goods; and, (c) neither
could they be held liable for violating B.P. Blg. 22 as they ordered payment of
the checks to be stopped because the goods delivered were not those specified
by them, besides they had sufficient funds to pay the checks.

In the decision of 18 September 1992 16 respondent Court of Appeals acquitted


accused-appellants of estafa on the ground that indeed the checks were not
made in payment of an obligation contracted at the time of their issuance.
However it affirmed the finding of the trial court that they were guilty of having
violated B.P. Blg. 22. 17 On 6 November 1992 their motion for reconsideration
was denied. 18

In the case at bench petitioners maintain that the prosecution failed to prove
that any of the essential elements of the crime punishable under B.P. Blg. 22
was committed within the jurisdiction of the Regional Trial Court of Malabon.
They claim that what was proved was that all the elements of the offense were
committed in Kalookan City. The checks were issued at their place of business,
received by a collector of LINTON, and dishonored by the drawee bank, all in
Kalookan City. Furthermore, no evidence whatsoever supports the proposition
that they knew that their checks were insufficiently funded. In fact, some of the
checks were funded at the time of presentment but dishonored nonetheless
upon their instruction to the bank to stop payment. In fine, considering that
the checks were all issued, delivered, and dishonored in Kalookan City, the

57
trial court of Malabon exceeded its jurisdiction when it tried the case and
rendered judgment thereon.

The petition has no merit. Section 1, par. 1, of B.P. Blg. 22 punishes "[a]ny
person who makes or draws and issues any check to apply on account or for
value, knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same
reason had not the drawer, without any valid reason, ordered the bank to stop
payment . . ." The gravamen of the offense is knowingly issuing a worthless
check. 19 Thus, a fundamental element is knowledge on the part of the drawer
of the insufficiency of his funds in 20 or credit with the drawee bank for the
payment of such check in full upon presentment. Another essential element is
subsequent dishonor of the check by the drawee bank for insufficiency of funds
or credit or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment. 21

It is settled that venue in criminal cases is a vital ingredient of


jurisdiction. 22 Section 14, par. (a), Rule 110, of the Revised Rules of Court,
which has been carried over in Sec. 15, par. (a), Rule 110 of the 1985 Rules on
Criminal Procedure, specifically provides:

Sec. 14. Place where action is to be instituted. — (a) In all criminal


prosecutions the action shall be instituted and tried in the court of the
municipality or province wherein the offense was committed or anyone of the
essential ingredients thereof took place.

If all the acts material and essential to the crime and requisite of its
consummation occurred in one municipality or territory, the court therein has
the sole jurisdiction to try the case. 23 There are certain crimes in which some
acts material and essential to the crimes and requisite to their consummation
occur in one municipality or territory and some in another, in which event, the
court of either has jurisdiction to try the cases, it being understood that the
first court taking cognizance of the case excludes the other. 24 These are the so-
called transitory or continuing crimes under which violation of B.P. Blg. 22 is
categorized. In other words, a person charged with a transitory crime may be
validly tried in any municipality or territory where the offense was in part
committed. 25

In determining proper venue in these cases, the following acts material and
essential to each crime and requisite to its consummation must be considered:
(a) the seven (7) checks were issued to LINTON at its place of business in Balut,
Navotas; b) they were delivered to LINTON at the same place; (c) they were
dishonored in Kalookan City; and, (d) petitioners had knowledge of the
insufficiency of their funds in SOLIDBANK at the time the checks were issued.
Since there is no dispute that the checks were dishonored in Kalookan City, it
is no longer necessary to discuss where the checks were dishonored.

Under Sec. 191 of the Negotiable Instruments Law the term "issue" means the
first delivery of the instrument complete in form to a person who takes it as a
holder. On the other hand, the term "holder" refers to the payee or indorsee of a
bill or note who is in possession of it or the bearer thereof. In People
v. Yabut 26 this Court explained —

58
. . . The place where the bills were written, signed, or dated does not
necessarily fix or determine the place where they were executed. What is of
decisive importance is the delivery thereof. The delivery of the instrument is
the final act essential to its consummation as an obligation. An undelivered
bill or note is inoperative. Until delivery, the contract is revocable. And the
issuance as well as the delivery of the check must be to a person who takes
it as a holder, which means "(t)he payee or indorsee of a bill or note, who is
in possession of it, or the bearer thereof." Delivery of the check signifies
transfer of possession, whether actual or constructive, from one person to
another with intent to transfer titlethereto . . .

Although LINTON sent a collector who received the checks from petitioners at
their place of business in Kalookan City, they were actually issued and
delivered to LINTON at its place of business in Balut, Navotas. The receipt of
the checks by the collector of LINTON is not the issuance and delivery to the
payee in contemplation of law. The collector was not the person who could take
the checks as a holder, i.e., as a payee or indorsee thereof, with the intent to
transfer title thereto. Neither could the collector be deemed an agent of LINTON
with respect to the checks because he was a mere employee. As this Court
further explained in People v. Yabut 27 —

Modesto Yambao's receipt of the bad checks from Cecilia Que Yabut or
Geminiano Yabut, Jr., in Caloocan City cannot, contrary to the holding of the
respondent Judges, be licitly taken as delivery of the checks to the
complainant Alicia P. Andan at Caloocan City to fix the venue there. He did
not take delivery of the checks as holder, i.e., as "payee" or "indorsee." And
there appears to be no contract of agency between Yambao and Andan so as
to bind the latter for the acts of the former. Alicia P. Andan declared in that
sworn testimony before the investigating fiscal that Yambao is but her
"messenger" or "part-time employee." There was no special
fiduciary relationship that permeated their dealings. For a contract of agency
to exist, the consent of both parties is essential. The principal consents that
the other party, the agent, shall act on his behalf, and the agent consents so
as to act. It must exist as a fact. The law makes no presumption thereof. The
person alleging it has the burden of proof to show, not only the fact of its
existence, but also its nature and extent . . .

Section 2 of B.P. Blg. 22 establishes a prima facie evidence of knowledge of


insufficient funds as follows —

The making, drawing and issuance of a check payment of which is refused by


the bank because of insufficient funds in or credit with such bank, when
presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless
such maker or drawer pays the holder thereof the amount due thereon, or
makes arrangement for payment in full by the drawee of such check within
five (5) banking days after receiving notice that such check has not been paid
by the drawee.

The prima facie evidence has not been overcome by petitioners in the cases
before us because they did not pay LINTON the amounts due on the checks;
neither did they make arrangements for payment in full by the drawee bank
within five (5) banking days after receiving notices that the checks had not
been paid by the drawee bank. InPeople v. Grospe 28 citing People
v. Manzanilla 29 we held that ". . . knowledge on the part of the maker or

59
drawer of the check of the insufficiency of his funds is by itself a continuing
eventuality, whether the accused be within one territory or another."

Consequently, venue or jurisdiction lies either in the Regional Trial Court of


Kalookan City or Malabon. Moreover, we ruled in the
same Grospe and Manzanilla cases as reiterated in Lim v. Rodrigo that 30

venue or jurisdiction is determined by the allegations in the Information. The


Informations in the cases under consideration allege that the offenses were
committed in the Municipality of Navotas which is controlling and sufficient
to vest jurisdiction upon the Regional Trial Court of Malabon. 31

We therefore sustain likewise the conviction of petitioners by the Regional


Trial Court of Malabon for violation of B.P. Blg. 22 thus —

Accused-appellants claim that they ordered payment of the checks to be


stopped because the goods delivered were not those specified by them. They
maintain that they had sufficient funds to cover the amount of the checks.
The records of the bank, however, reveal otherwise. The two letters (Exhs. 21
and 22) dated July 23, and August 10, 1983 which they claim they sent to
Linton Commercial, complaining against the quality of the goods delivered by
the latter, did not refer to the delivery of mild steel plates (6mm x 4 x 8) and
"Z" purlins (16 x 7 x 2-1/2 mts) for which the checks in question were issued.
Rather, the letters referred to B.1. Lally columns (Sch. #20), which were the
subject of other purchase orders.

It is true, as accused-appellants point out, that in a case brought by them


against the complainant in the Regional Trial Court of Kalookan City (Civil
Case No. C-10921) the complainant was held liable for actual damages
because of the delivery of goods of inferior quality (Exh. 23). But the supplies
involved in that case were those of B.I. pipes, while the purchases made by
accused-appellants, for which they issued the checks in question, were
purchases of mild steel plates and "Z" purlins.

Indeed, the only question here is whether accused-appellants maintained


funds sufficient to cover the amounts of their checks at the time of issuance
and presentment of such checks. Section 3 of B.P. Blg. 22 provides that
"notwithstanding receipt of an order to stop payment, the drawee bank shall
state in the notice of dishonor that there were no sufficient funds in or credit
with such bank for the payment in full of the check, if such be the fact."

The purpose of this provision is precisely to preclude the maker or drawer of a


worthless check from ordering the payment of the check to be stopped as a
pretext for the lack of sufficient funds to cover the check.

In the case at bar, the notice of dishonor issued by the drawee bank,
indicates not only that payment of the check was stopped but also that the
reason for such order was that the maker or drawer did not have sufficient
funds with which to cover the checks. . . . Moreover, the bank ledger of
accused-appellants' account in Consolidated Bank shows that at the time the
checks were presented for encashment, the balance of accused-appellants'
account was inadequate to cover the amounts of the checks. 32 . . .

WHEREFORE, the decision of the Court of Appeals dated 18 September 1992


affirming the conviction of petitioners Manuel Lim and Rosita Lim —

60
In CA-G.R. CR No. 07277 (RTC Crim. Case No. 1699-MN); CA-G.R. CR No.
07278 (RTC Crim. Case No. 1700-MN); CA-G.R. CR No. 07279 (RTC Crim.
Case No. 1701-MN); CA-G.R. CR No. 07280 (RTC Crim. Case No. 1702-MN);
CA-G.R. CR No. 07281 (RTC Crim. Case No. 1703-MN); CA-G.R. CA No.
07282 (RTC Crim. Case No. 1704-MN); and CA-G.R. CR No. 07283 (RTC
Crim Case No. 1705-MN), the Court finds the accused-appellants

MANUEL LIM and ROSITA LIM guilty beyond reasonable doubt of violation of
Batas Pambansa Bilang 22 and are hereby sentenced to suffer a STRAIGHT
PENALTY OF ONE (1) YEAR IMPRISONMENT in each case, together with all
the accessory penalties provided by law, and to pay the costs.

In CA-G.R. CR No. 07277 (RTC Crim. Case No. 1699-MN), both accused-
appellants are hereby ordered to indemnify the offended party in the sum of
P27,900.00.

In CA-G.R. CR No. 07278 (RTC Crim. Case No. 1700-MN) both accused-
appellants are hereby ordered to indemnify the offended party in the sum of
P32,550.00.

In CA-G.R. CR No. 07278 (RTC Crim. Case No. 1701-MN) both accused-
appellants are hereby ordered to indemnify the offended party in the sum of
P27,900.00.

In CA-G.R. CR No. 07280 (RTC Crim. Case No. 1702-MN) both accused-
appellants are hereby ordered to indemnify the offended party in the sum of
P27,900.00.

In CA-G.R. CR No. 07281 (RTC Crim. Case No. 1703-MN) both accused are
hereby ordered to indemnify the offended party in the sum of P63,455.00.

In CA-G.R CR No. 07282 (RTC Crim. Case No. 1704-MN) both accused-
appellants are hereby ordered to indemnify the offended party in the sum of
P51,800.00, and

In CA-G.R. CR No. 07283 (RTC Crim. Case No. 1705-MN) both accused-
appellants are hereby ordered to indemnify the offended party in the sum of
P37,200.00 33 —

as well as its resolution of 6 November 1992 denying reconsideration


thereof, is AFFIRMED. Costs against petitioners.

SO ORDERED.

G.R. No. 107383 December 7, 1994


FELIX NIZURTADO, petitioner, vs.SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
VITUG, J.:

An information, accusing Felix Nizurtado of having committed the complex


crime of malversation of public funds through falsification of public document,
reads:

That on or about August 25, 1983, and for sometime prior or subsequent
thereto, in the City of Caloocan, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, a public officer, being then the

61
Barangay Captain of Panghulo, Malabon, Metro Manila, did then and there,
willfully, unlawfully and feloniously falsify and attest Resolution No. 17 Series
of 1983 by making it appear that on August 25, 1983 the Barangay council of
Panghulo met and identified T-shirt manufacturing as its livelihood project,
when in truth and in fact, as the accused fully well knew, no such meeting
was held, where T-shirt manufacturing was identified and approved by the
Barangay Council as its livelihood project, and thereafter, accused submitted
the falsified resolution to the MHS-MMC-KKK Secretariat which endorsed the
same to the Land Bank of the Philippines, which on the basis of said
endorsement and the falsified resolution, encashed LBP check No. 184792 in
the amount of TEN THOUSAND PESOS (P10,000.00), which check was earlier
received by him as Barangay Captain of Panghulo in trust for the Barangay
for its livelihood project and for which fund accused became accountable, and
upon receipt thereof herein accused, with deliberate intent and grave abuse of
confidence did then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert to his own personal use and benefit the
amount of TEN THOUSAND PESOS (P10,000.00) out of the funds for which
he was accountable, to the damage and prejudice of the government in the
said amount.

CONTRARY TO LAW. 1

When arraigned by the Sandiganbayan, Nizurtado pleaded "not guilty" to the


charge. During the pre-trial, held on 17 July 1989, the prosecution and the
defense stipulated thusly:

1. That sometime in 1983 and 1984, accused Felix Nizurtado was the
Barangay Captain of Barangay Panghulo of Malabon, Metro Manila and
discharged his functions as such;
2. That sometime in 1983, the Ministry of Human Settlements, the Metro
Manila Commission and Kilusang Kabuhayan at Kaunlaran (KKK)
undertook a Livelihood Program for Barangays in Metro Manila consisting of
loans in the amount of P10, 000.00 per barangay.
3. That as Barangay Captain of Barangay Panghulo, accused received a
check in the amount of P10,000.00 for said barangay's livelihood program;
4. That the check, to be encashed, had to be supported by a project
proposal to be approved by the KKK;
5. That the accused encashed the check received by him in the amount of
P10,000.00 with the Land Bank of the Philippines; and
6. That the accused distributed the amount of P10,000.00 in the form of
loans of P1,000.00 each to members of the barangay council. 2

After evaluating the evidence adduced, the Sandiganbayan came out with its
factual findings and conclusions, hereunder detailed:

It appears from the evidence, testimonial and documentary, as well as from


the stipulations of the parties that accused Felix V. Nizurtado was the
Barangay Captain of Barangay Panghulo, Malabon, Metro Manila from 1983
to 1988.

In April or May 1983, Nizurtado and Manuel P. Romero, Barangay Treasurer


of Panghulo, attended a seminar at the University of Life, Pasig, Metro
Manila. The seminar was about the Barangay Livelihood Program of the
Ministry of Human Settlements (MHS), the Metro Manila Commission
(MMC), and the Kilusang Kabuhayan at Kaunlaran (KKK). Under the
program, the barangays in Metro Manila could avail of loans of P10,000.00

62
per barangay to finance viable livelihood projects which the Barangay
Councils would identify from the modules developed by the KKK Secretariat
or which, in the absence of such modules, the Councils would choose
subject to the evaluation/validation of the Secretariat.

After the seminar, Nizurtado received a check for P10,000.00 intended for
Barangay Panghulo and issued in his name. The check, however, could be
encashed only upon submission to the Secretariat of a resolution approved
by the Barangay Council identifying the livelihood project in which the loan
would be invested. He entrusted the check to Romero for safekeeping.

In one of its regular sessions, which was on the second Saturday of each
month, the Barangay Council of Panghulo discussed the project in which to
invest the P10,000.00. Among the proposals was that of Romero that a
barangay service center be established. But the meeting ended without the
Councilmen agreeing on any livelihood project.

A few days after the meeting, Nizurtado got back the check from Romero,
saying that he would return it because, as admitted by Nizurtado during the
trial, the Councilmen could not agree on any livelihood project. Nizurtado
signed a receipt dated August 4, 1983, for the check "to be returned to the
Metro Manila Commission."

After a few more days, Nizurtado asked Romero to sign an unaccomplished


resolution in mimeograph form. All the blank spaces in the form were
unfilled-up, except those at the bottom which were intended for the names
of the Barangay Councilmen, Secretary, and Captain, which were already
filled-up and signed by Councilmen Marcelo Sandel, Jose Bautista, Alfredo
Aguilar, Alfredo Dalmacio, F.A. Manalang (the alleged Barangay Secretary),
and Nizurtado. In asking Romero to sign, Nizurtado said that the MMC was
hurrying up the matter and that the livelihood project to be stated in the
resolution was that proposed by Romero — barangay service center.
Trusting Nizurtado, Romero affixed his signature above his typewritten
name. When he did so, the blank resolution did not yet bear the signatures
of Councilmen Santos Gomez and Ceferino Roldan.

The blank resolution having already been signed by Romero, Nizurtado


asked him to talk with Gomez and secure the latter's signature. Romero
obliged and upon his pleading that his proposed barangay service center
would be the one written in the blank resolution, Gomez signed. But before
he returned the resolution, he had it machine copied. The machine copy is
now marked Exhibit J.

Unknown to Romero and Gomez, the blank but signed resolution was later
on accomplished by writing in the blank space below the paragraph reading:

WHEREAS, the Barangay Council now in this session had already identified
one livelihood project with the following title and description:

the following:

Title : T-shirt Manufacturing


Description : Manufacture of round neck T-shirts of
various sizes and colors.

63
The other blank spaces in the resolution were also filled-up. Thus
"Panghulo," "Brgy. Hall," and "August 25, 1983" were typewritten in the
spaces for the name of the Barangay, the place where and the date when the
council meeting took place, respectively. In the blank spaces for the names
of the members of the Council who attended the meeting were typewritten
the names of

Felix Nizurtado Barangay Captain


Marcelo Sandel Barangay Councilman
Alfredo Aguilar Barangay Councilman
Santos Gomez Barangay Councilman
Jose Bautista Barangay Councilman
Alfredo Dalmacio Barangay Councilman
Ceferino Roldan Barangay Councilman

The word "none" was inserted in the space intended for the names of the
Councilmen who did not attend. The resolution was given the number "17"
series of "1983." Finally, the last line before the names and signatures of the
Councilmen was completed by typewriting the date so that it now reads:

UNANIMOUSLY APPROVED this 25th day of August, 1983.

The resolution as fully accomplished is now marked Exhibit D.

Other supporting documents for the encashment of the check of P10,000.00


were also prepared, signed, and filed by Nizurtado. They were: Project
Identification (Exhibit B), Project Application in which the borrower was
stated to be Samahang Kabuhayan ng Panghulo (Exhibit C and C-1), Project
Location Map (Exhibit E), and Promissory Note
(Exhibit F).

The application for loan having been approved, the Promissory Note (Exhibit
F) was re-dated from August to October 18, 1983, placed in the name of the
Samahang Kabuhayan ng Panghulo represented by Nizurtado, and made
payable in two equal yearly amortizations of P5,000.00 each from its date.
The purpose of the loan was stated to be
T-Shirt Manufacturing of round neck shirts of various sizes and colors.

Nizurtado encashed the check on the same day, October 18, 1983, and re-
lent the cash proceeds to himself, Sandel, Aguilar, Bautista, Dalmacio, and
Roldan at P1,000.00, and to Manalang and Oro Soledad, Barangay Court
Secretary and Barangay Secretary, respectively, at P500.00 each.

On April 25, 1984, Nizurtado who was then on leave wrote Sandel, then
acting Barangay Captain, informing him that per record, he, Romero, and
Gomez had not made any remittance for the account of their P1,000.00
loans from the barangay livelihood fund of P10,000.00 and advising him to
collect, through the Secretary or Treasurer.

Since Romero and Gomez had not borrowed any amount from the said fund,
they told Sandel to ask Nizurtado if he had any proof of their alleged loans.
So Sandel wrote Nizurtado on May 2, 1984, but the latter did not answer.

This attempt to collect from Romero and Gomez prompted them to make
inquiries. They learned that the check for P10,000.00 was indeed encashed
by Nizurtado and that the blank resolution which they had signed was

64
filled-up to make it appear that in a Council meeting where all councilmen
were present on August 25, 1983, T-shirt manufacturing was adopted as
the livelihood project of Panghulo. But no such meeting occurred on that
day or on any other day. Neither was Nizurtado authorized by the Council to
submit T-shirt Manufacturing as the livelihood project of Panghulo.

On August 9, 1984, Romero and Gomez lodged their complaint against


Nizurtado with the Office of the Tanodbayan. After due preliminary
investigation, this case was filed.

As of September 7, 1984, the members of the Council who had received


P1,000.00 each, as well as Bacani (also referred to as Manalang) and
Soledad who had received P500.00 each had paid their respective loans to
Nizurtado who, in turn, remitted the payments to the MMC on these dates:

April 16, 1984 P1,450.00


August 14, 1984 3,550.00
September 7, 1984 3,000.00
————

Total P8,000.00

In June 1987, after demands for payment, Dalmacio remitted the balance of
P2,000.00 from his pocket because, as acting Barangay Captain, he did not
want to leave the Barangay with an indebtedness. 3

On the basis of its above findings, the Sandiganbayan convicted the accused
of the offense charged. The dispositive portions of its decision, promulgated
on 18 September 1992, read:

WHEREFORE, the Court finds Felix Nizurtado y Victa guilty beyond


reasonable doubt of the complex crime of malversation of public funds
committed through falsification of public document and, appreciating in his
favor . . . two mitigating circumstances and applying the Indeterminate
Sentence Law, imposes upon him the penalties of imprisonment ranging
from FOUR (4) YEARS, NINE (9) MONTHS, and ELEVEN (11) DAYS of prision
correccional as minimum to EIGHT (8) YEARS, EIGHT (8) MONTHS, and
ONE (1) DAY of prision mayor as maximum; perpetual special
disqualification; and a fine of P10,000.00.

No pronouncement is made as to civil liability, there having been complete


restitution of the amount malversed.

With costs.

SO ORDERED. 4

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

1. It has committed grave abuse of discretion in finding that Resolution No.


17, dated August 25, 1983, of the Barangay Council of Panghulo, Malabon,
Metro Manila (Exh. "D") is a falsified document and that the petitioner is the
forger thereof; and

65
2. It has committed serious error of law and gravely abused its
discretion in finding petitioner guilty of malversation of the amount
of P10,000.00 which he had received as a loan from the then Metro
Manila Commission in his capacity as representative of the
Samahang Kabuhayan ng Barangay Panghulo, Malabon, Metro
Manila. 5

The Solicitor General Agrees in all respects with the Sandiganbayan in its
findings and judgment except insofar as it has found petitioner to have likewise
committed the crime of falsification of a public document.

Article 217 of the Revised Penal Code provides:

Art. 217. Malversation of public funds or property. — Presumption of


malversation. — Any public officer who, by reason of the duties of his office,
is accountable for public funds or property, shall appropriate the same, or
shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or
property, wholly or partially, or shall otherwise be guilty the
misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if


the amount involved in the misappropriation or malversation does not
exceed two hundreds pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion


temporal in its minimum period, if the amount involved is more than six
thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if


the amount involved is more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds the latter, the penalty
shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.

The elements of malversation, essential for the conviction of an accused, under


the above penal provisions are that —

(a) the offender is a public officer;

(b) he has the custody or control of funds or property by reason of the duties
of his office;

66
(c) the funds or property involved are public funds or property for which he
is accountable; and

(d) he has appropriated, taken or misappropriated, or has consented to, or


through abandonment or negligence permitted, the taking by another
person of, such funds or property.

Nizurtado was a public officer, having been the Barangay Captain of Panghulo,
Malabon, Metro Manila, from 1983 to 1988; in that capacity, he received and
later encashed a check for P10,000.00, specifically intended by way of a loan to
the barangay for its livelihood program; and the funds had come from the
Ministry of Human Settlements, the Metro Manila Commission and "Kilusang
Kabuhayan at Kaunlaran."

The only point of controversy is whether or not Nizurtado has indeed


misappropriated the funds.

Petitioner was able to encash the check on 18 October 1988 on the basis of a
resolution of the Barangay Council, submitted to the KKK Secretariat, to the
effect that a livelihood project, i.e., "T-shirt manufacturing," had already been
identified by the council. The money, however, instead of its being used for the
project, was later lent to, along with petitioner, the members of the Barangay
Council. Undoubtedly, the act constituted "misappropriation" within the
meaning of the law. 6

Accused-appellant sought to justify the questioned act in that it was only when
the members of the Barangay Council had realized that P10,000.00 was not
enough to support the T-shirt manufacturing project, that they decided to
distribute the money in the form of loans to themselves. He submitted, in
support thereof, a belated 7certification issued by Rodolfo B. Banquicio, Chief
of District IV of the Support Staff and Malabon Sub-District Officer of KKK, to
the effect that Barangay Captains were given discretionary authority to invest
the money in any viable project not falling within the list of project modules
provided by the MHS-NCR Management. Lending the unutilized funds to the
members of the Barangay council could have hardly been meant to be the
viable project contemplated under that certification. Furthermore, it would
appear that only Regional Action Officer Ismael Mathay, Jr., and Deputy
Regional Action Officer Lilia S. Ledesma were the officials duly authorized to
approve such projects upon the recommendation of the KKK Secretariat. 8 We
could see no flaw in the ratiocination of the Sandiganbayan, when, in rejecting
this defense, it said:

The defense evidence that the Barangay Council changed the T-shirt
Manufacturing to whatever business ventures each members of the
Council would select for investment of his P1,000.00 has, as already
stated, little, if any, probative value.

But assuming there was such a change, the same is of no avail. The
Resolution marked Exhibit D expressly stated that the P10,000.00 "shall
only be appropriated for the purpose/s as provided in the issued policies
and guidelines of the program." The guidelines, in turn, prescribed that
the livelihood project shall be identified from the modules developed by the
KKK Secretariat or, as stipulated in the Resolution itself, in the absence of
such modules, shall be chosen by the Samahang Kabuhayan "subject to
the evaluation/validation of the KKK Secretariat." There is absolutely no
showing that the alleged substitute projects which each lendee of

67
P1,000.00 would select were among those of the developed modules or
were submitted to the KKK Secretariat for evaluation/validation. 9

Accused-appellant criticizes the Sandiganbayan for its having failed to consider


the fact that no valid demand has been made, or could have been made, for the
repayment of the loaned sum. Demand merely raises a prima faciepresumption
that missing funds have been put to personal use. The demand itself, however,
is not an element of, and not indispensable to constitute, malversation. Even
without a demand, malversation can still be committed when enough facts,
such as here, are extant to prove it. 10

Accused-appellant was charged with having committed the crime through the
falsification of a public document punishable under paragraph 2 of Article 171
of the Revised Penal Code.

The pertinent provisions read:

Art. 171. Falsification by public officer, employee or notary or ecclesiastic


minister. — The penalty ofprision mayor and a fine not to exceed 5,000
pesos shall be imposed upon any public officer, employee, or notary who,
taking advantage of his official position, shall falsify a document by
committing any of the following acts:

xxx xxx xxx

2. Causing it to appear that persons have participated in any act or


proceeding when they did not in fact so participate;

In falsification under the above-quoted paragraph, the document need not be


an authentic official paper since its simulation, in fact, is the essence of
falsification. So, also, the signatures appearing thereon need not necessarily
be forged. 11

In concluding that the Barangay Council resolution, Exhibit "D," 12 was a


falsified document for which petitioner should be held responsible, the
Sandiganbayan gave credence to the testimonies of Barangay Councilman
Santos A. Gomez and Barangay Treasurer Manuel P. Romero. The two testified
that no meeting had actually taken place on 25 August 1983, the date when
"T-shirt manufacturing" was allegedly decided to be the barangay livelihood
project. The Sandiganbayan concluded that Nizurtado had induced Romero
and Gomez to sign the blank resolution, Exhibit "J" 13 on the representation
that Romero's proposal to build a barangay service center would so later be
indicated in that resolution as the barangay livelihood project.

The established rule is that unless the findings of fact of the Sandiganbayan
are bereft of substantial evidence to support it, those findings are binding on
this court.

The Sandiganbayan has considered the mitigating circumstances of voluntary


surrender and restitution in favor of Nizurtado. Deputy Clerk of Court Luisabel
Alfonso Cortez, on 17 January 1989, has certified to the voluntary surrender of
the accused thusly:

CERTIFICATION

68
THIS CERTIFIES that accused FELIX NIZURTADO in criminal Case No:
13304 voluntarily surrendered before this court on JANUARY 17, 1989 and
posted his bail bond in said case.
Manila, Philippines, JANUARY 17, 1989
(sgd.)
LUIBEL ALFONSO CORTEZ
Deputy Clerk of Court 14

Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore, may thus be
treated as a modifying circumstance independent and apart from restitution of
the questioned funds by petitioner (Art. 13, par. 10, Revised Penal Code). We are
convinced, furthermore, that petitioner had no intention to commit so grave a
wrong as that committed. (Art. 13, par. 3, Revised Penal Code), entitling him to
three distinct mitigating circumstances.

Under Article 48 of the Revised Penal Code, when a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be imposed, the
same (the penalty) to be applied in the maximum period. The penalty prescribed
for the offense of malversation of public funds, when the amount involved
exceeds six thousand pesos but does not exceed twelve thousand pesos,
is prision mayor in its maximum period to reclusion temporal in its minimum
period; in addition, the offender shall be sentenced to suffer perpetual special
disqualification and to pay a fine equal to the amount malversed (Art. 217[3],
Revised Penal Code). The penalty of prision mayor and a fine of five thousand
pesos is prescribed for the crime of falsification under Article 171 of the Revised
Penal Code. The former (that imposed for the malversation), being more severe
than the latter (that imposed for the falsification), is then the applicable
prescribed penalty to be imposed in its maximum period. The actual attendance
of two separate mitigating circumstances of voluntary surrender and restitution,
also found by the Sandiganbayan and uncontested by the Solicitor General,
entitles the accused to the penalty next lower in degree. For purposes of
determining that next lower degree, the full range of the penalty prescribed by
law for the offense, not merely the imposable penalty because of its complex
nature, should, a priori, be considered. It is our considered view that the ruling
in People vs. Gonzales, 73 Phil. 549, as opposed to that of People vs. Fulgencio,
92 Phil. 1069, is the correct rule and it is thus here reiterated. In fine, the one
degree lower than prision mayor maximum to reclusion temporal minimum
is prision mayor minimum to prision mayor medium (being the next two periods
in the scale of penalties [see Art. 64, par 5, in relation to Art. 61, par 5, Revised
Penal Code]) the full range of which is six years and one day to ten years. This
one degree lower penalty should, conformably with Article 48 of the Code (the
penalty for complex crimes), be imposed in its maximum period or from eight
years, eight months and one day to ten years. The presence of the third
mitigating circumstance of praeter intentionem (lack of intention to commit so
grave a wrong as that committed) would result in imposing a period the court
may deem applicable. 15Considering, however, that the penalty has to be
imposed in the maximum period, the only effect of this additional mitigating
circumstance is to impose only the minimum portion of that maximum
period, 16 that is, from eight years, eight months and one day to nine years, six
months and ten days, from which range the maximum of the indeterminate
sentence shall be taken.

Under the Indeterminate Sentence Law (which can apply since the maximum
term of imprisonment would exceed one year), the court is to impose an
indeterminate sentence, the minimum of which shall be anywhere within the

69
range of the penalty next lower in degree (i.e., prision correccional in its medium
period to prision correccional in its maximum period or anywhere from two years,
four months and one day to six years) and the maximum of which is that which
the law prescribes after considering the attendant modifying circumstances. In
view of the mitigating circumstances present in this case, the fine of P10,000.00
may also be reduced (Art. 66, Revised Penal Code) and, since the principal
penalty is higher than prision correccional, subsidiary imprisonment would not
be warranted. (Art. 39, par. 3, Revised Penal Code).

The law and the evidence no doubt sustains Nizurtado's conviction. Given all the
attendant circumstances, it is, nevertheless, the personal and humble opinion of
the assigned writer of this ponencia that appellant deserves an executive
commutation of the statutory minimum sentence pronounced by this Court.

WHEREFORE, the decision of the Sandiganbayan convicting Nizurtado for


malversation of public funds through falsification of public document is
AFFIRMED but the sentence, given the circumstances here obtaining, is
MODIFIED by imposing on petitioner a reduced indeterminate sentence
of from two years, four months and one day to eight years, eight months and one
day, perpetual special disqualification and a fine of P2,000.00.

SO ORDERED.

G.R. No. L-46428 April 13, 1939


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.IRINEO
TUMLOS, defendant-appellant.

VILLA-REAL, J.:

The defendant Irineo Tumlos appeals to this court from the judgment of the
Court of First Instance of Iloilo finding him guilty of the crime of theft of large
cattle defined and punished in article 310, in relation to article 309, of the
Revised Penal Code, and sentencing him to suffer the indeterminate penalty of
from two months and one day ofarresto mayor to two years, four months and
one day of prision correccional, with the accessories prescribed by law and
costs, by virtue of an information reading as follows:

The undersigned acting provincial fiscal accuses Irineo Tumlos of the crime
of qualified theft committed as follows:

That on or about November 21, 1937, in the municipality of Sara, Province


of Iloilo, Philippines, and within the jurisdiction of this court, said
defendant, wilfully and without using force upon things or violence or
intimidation against person, took, with intent to gain and without the
consent of their owner, five cows valued at P39 and belonging to Ambrosio
Pecasis.

An act punishable by law.

Iloilo, July 11, 1938.

In support of his appeal the appellant assigns as the only error allegedly
committed by the lower court in the aforesaid judgment its failure to sustain
the defense of "autrefois convict" or double jeopardy, interposed by said
defendant.

70
On or about November 21, 1937, eight cows belonging to Maximiano Sobrevega
and five belonging to his son-in-law, Ambrosio Pecasis, then grazing together in
the barrio of Libong-cogon, municipality of Sara, Province of Iloilo, were taken
by the herein defendant without the knowledge or consent of their respective
owners. The deputy fiscal of Iloilo filed on July 11, 1938, an information
against the said defendant for the offense of theft of the eight cows belonging to
Maximiano Sobrevega, which resulted in his being sentenced on July 15, 1938,
to an indeterminate penalty of from one year, eight months and twenty-one
days to five years, five months and eleven days of prision correccional, with the
accessories prescribed by law and costs. In the information filed in the present
case the same defendant is charged with the theft of five cows belonging to
Ambrosio Pecasis, committed on November 21, 1937, the date of the
commission of the theft to the eight cows of Maximiano Sobrevega charged to
the previous information.

The question to be decided in the present appeal is whether or not the


conviction of the accused for the theft of the eight cows belonging to Maximiano
Sobrevega constitutes a bar to his conviction for the theft of the five cows
belonging to Ambrosio Pecasis, which were grazing together with the aforesaid
eight cows belonging to Maximiano Sobrevega in the same place from which
they were stolen at the same time, under the legal procedural principle of
"autrefois convict" or double jeopardy.

The theft of the thirteen cows committed by the defendant took place at the
same time and in the same place; consequently, he performed but one act. The
fact that eight of said cows pertained to one owner and five to another does not
make him criminally liable for two distinct offenses, for the reason that in such
case the act must be divided into two, which act is not susceptible of division.

The intention was likewise one, namely, to take for the purpose of
appropriating or selling the thirteen cows which he found grazing in the same
place. As neither the intention nor the criminal act is susceptible of division,
the offense arising from the concurrence of its two constituent elements cannot
be divided, it being immaterial that the subject matter of the offense is singular
or plural, because whether said subject matter be one or several animate or
inanimate objects, it is but one.

Therefore, as the five cows alleged to be stolen by Irineo Tumlos were integral
parts of the thirteen cows which were the subject matter of theft, and as he had
already been tried for and convicted of the theft of the other five.

Wherefore, as he had already been put in jeopardy of being convicted of the


theft of the five cows in question when he was tried for and convicted of the
theft of the eight which together with the five from an integral part of the
thirteen which were the subject matter of the offense, the conviction of the
herein defendant Irineo Tumlos for the said five cows in the present case would
be the second, in violation of his constitutional right not to be punished twice
for the same offense; hence, he is acquitted of the charge, which is dismissed,
with costs de oficio. So ordered.

G.R. No. L-28547 February 22, 1974


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELIAS JARANILLA,
RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA, accused.
ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendants-
appellants.
AQUINO, J.:p

71
This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco
Brillantes from the decision of the Court of First Instance of Iloilo, which
convicted them of robbery with homicide, sentenced each of them to reclusion
perpetua and ordered them to pay solidarily the sum of six thousand pesos to
the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin
Baylon as the value of fighting cocks (Criminal Case No. 11082).

The evidence for the prosecution shows that at around eleven o'clock in the
evening of January 9, 1966, Gorriceta, who had just come from Fort San Pedro
in Iloilo City, was driving a Ford pickup truck belonging to his sister, Remia G.
Valencia. While he was in front of the Elizalde Building on J. M. Basa Street, he
saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta
who stopped the truck. Jaranilla requested to bring them to Mandurriao, a
district in another part of the city. Gorriceta demurred. He told Jaranilla that
he (Gorriceta) was on his way home.

Jaranilla prevailed upon Gorriceta to take them to Mandurriao because


Jaranilla ostensibly had to get something from his uncle's place. So, Jaranilla,
Brillantes and Suyo boarded the pickup truck which Gorriceta drove to
Mandurriao.

Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about


fifty to seventy meters from the provincial hospital. Jaranilla, Suyo and
Brillantes alighted from the vehicle. Jaranilla instructed Gorriceta to wait for
them. The trio walked in the direction of the plaza. After an interval of about
ten to twenty minutes, they reappeared. Each of them was carrying two fighting
cocks. They ran to the truck.

Jaranilla directed Gorriceta to start the truck because they were being chased.
Gorriceta drove the truck to Jaro (another district of the city) on the same route
that they had taken in going to Mandurriao.

It is important to note the positions of Gorriceta and his three companions on


the front seat of the track. Gorriceta the driver, was on the extreme left. Next to
him on his right was Suyo. Next to Suyo was Brillantes. On the extreme right
was Jaranilla.

While the truck was traversing the detour road near the Mandurriao airport,
then under construction, Gorriceta saw in the middle of the road Patrolmen
Ramonito Jabatan and Benjamin Castro running towards them. Gorriceta
slowed down the truck after Patrolman Jabatan had fired a warning shot and
was signalling with his flashlight that the truck should stop. Gorriceta stopped
the truck near the policeman. Jabatan approached the right side of the truck
near Jaranilla and ordered all the occupants of the truck to go down. They did
not heed the injunction of the policeman.

Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all
of a sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He
immediately started the motor of the truck and drove straight home to La Paz,
another district of the city. Jaranilla kept on firing towards Jabatan.

Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta


parked the truck inside the garage. Jaranilla warned Gorriceta not to tell
anybody about the incident. Gorriceta went up to his room. After a while, he
heard policemen shouting his name and asking him to come down. Instead of
doing so, he hid in the ceiling. It was only at about eight o'clock in the morning

72
of the following day that he decided to come down. His uncle had counselled
him to surrender to the police. The policemen took Gorriceta to their
headquarters. He recounted the incident to a police investigator.

Victorino Trespeces, whose house was located opposite the house of Valentin
Baylon on Taft Street in Mandurriao, testified that before midnight of January
9, 1966, he conducted a friend in his car to the housing project in the vicinity
of the provincial hospital at Mandurriao. As he neared his residence, he saw
three men emerging from the canal on Taft Street in front of Baylon's house. He
noticed a red Ford pickup truck parked about fifty yards from the place where
he saw the three men. Shortly thereafter, he espied the three men carrying
roosters. He immediately repaired to the police station at Mandurriao. He
reported to Patrolmen Jabatan and Castro what he had just witnessed. The two
policemen requested him to take them in his car to the place where he saw the
three suspicious-looking men. Upon arrival thereat, the men and the truck
were not there anymore.

Trespeces and the policemen followed the truck speeding towards Jaro. On
reaching the detour road leading to the airport, the policemen left the car and
crossed the runway which was a shortcut. Their objective was to intercept the
truck. Trespeces turned his car around in order to return to Mandurriao. At
that moment he heard gunshots. He stopped and again turned his car in the
direction where shots had emanated. A few moments later, Patrolman Castro
came into view. He was running. He asked Trespeces for help because Jabatan,
his comrade, was wounded. Patrolman Castro and Trespeces lifted Jabatan
into the car and brought him to the hospital. Trespeces learned later that
Jabatan was dead.

Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City
police department, conducted an autopsy on the remains of Patrolman
Jabatan. He found:

(1) Contusion on left eyebrow.

(2) Bullet wound one centimeter in diameter, penetrating left


anterior axilla, directed diagonally downward to the right,
perforating the left upper lobe of the lungs through and through,
bitting the left pulmonary artery and was recovered at the right
thoracic cavity; both thoracic cavity was full of blood.

Cause of death: Shock, hemorrhage, secondary to bullet wound.

Valentin Baylon, the owner of the fighting cocks, returned home at about six
o'clock in the morning of January 10, 1966. He discovered that the door of one
of his cock pens or chicken coops (Exhs. A and A-1) was broken. The feeding
vessels were scattered on the ground. Upon investigation he found that six of
his fighting cocks were missing. Each coop contained six cocks. The coop was
made of bamboo and wood with nipa roofing. Each coop had a door which was
locked by means of nails. The coops were located at the side of his house,
about two meters therefrom.

Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a
group of detectives came to his house together with the police photographer
who took pictures of the chicken coops. The six roosters were valued at one
hundred pesos each. Two days later, he was summoned to the police station at
Mandurriao to identify a rooster which was recovered somewhere at the airport.

73
He readily identified it as one of the six roosters which was stolen from his
chicken coop (Exh. B).

Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con
homicidio with the aggravating circumstances of use of a motor vehicle,
nocturnity, band, contempt of or with insult to the public authorities and
recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was
dismissed as to him.

On February 2, 1967, after the prosecution had rested its case and before the
defense had commenced the presentation of its evidence, Jaranilla escaped
from the provincial jail. The record does not show that he has been
apprehended.

The judgment of conviction was promulgated as to defendants Suyo and


Brillantes on October 19, 1967 when it was read to them in court. They signed
at the bottom of the last page of the decision.

There was no promulgation of the judgment as to Jaranilla, who, as already


stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court).

However, the notice of appeal filed by defendants' counsel de oficio erroneously


included Jaranilla. Inasmuch as the judgment has not been promulgated as to
Jaranilla, he could not have appealed. His appeal through counsel cannot be
entertained. Only the appeals of defendants Suyo and Brillantes will be
considered.

In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial
court assumed that the taking of the six fighting cocks was robbery and that
Patrolman Jabatan was killed "by reason or on the occasion of the robbery"
within the purview of article 294 of the Revised Penal Code.

In this appeal the appellants contend that the trial court erred in not finding
that Gorriceta was the one who shot the policeman and that Jaranilla was
driving the Ford truck because Gorriceta was allegedly drunk. Through their
counsel de oficio, they further contend that the taking of roosters was theft
and, alternatively, that, if it was robbery, the crime could not be robbery with
homicide because the robbery was already consummated when Jabatan was
killed.

After evaluating the testimonies of Gorriceta and Brillantes as to who was


driving the truck and who shot policeman, this Court finds that the trial court
did not err in giving credence to Gorriceta's declaration that he was driving the
truck at the time that Jaranilla shot Jabatan.

The improbability of appellants' theory is manifest. The truck belonged to


Gorriceta's sister. He was responsible for its preservation. He had the
obligation to return it to his sister in the same condition when he borrowed it.
He was driving it when he saw Brillantes, Jaranilla and Suyo and when he
allegedly invited them for a paseo. There is no indubitable proof that Jaranilla
knows how to drive a truck.

The theory of the defense may be viewed from another angle. If, according to
the appellants, Gorriceta asked Jaranilla to drive the truck because he
(Gorriceta) was drunk then that circumstance would be inconsistent with their
theory that Gorriceta shot Jabatan. Being supposedly intoxicated, Gorriceta

74
would have been dozing when Jabatan signalled the driver to stop the truck
and he could not have thought of killing Jabatan in his inebriated state. He
would not have been able to shoot accurately at Jabatan. But the fact is that
the first shot hit Jabatan. So, the one who shot him must have been a sober
person like Jaranilla.

Moreover, as Jaranilla and his two comrades were interested in concealing the
fighting cocks, it was Jaranilla, not Gorriceta, who would have the motive for
shooting Jabatan. Consequently, the theory that Gorriceta shot Jabatan and
that Jaranilla was driving the truck appears to be plausible.

Was the taking of the roosters robbery or theft? There is no evidence that in
taking the six roosters from their coop or cages in the yard of Baylon's house
violence against or intimidation of persons was employed. Hence, article 294 of
the Revised Penal Code cannot be invoked.

Neither could such taking fall under article 299 of the Revised Penal Code
which penalizes robbery in an inhabited house (casa habitada), public building
or edifice devoted to worship. The coop was not inside Baylon's house. Nor was
it a dependency thereof within the meaning of article 301 of the Revised Penal
Code.

Having shown the inapplicability of Articles 294 and 299, the next inquiry is
whether the taking of the six roosters is covered by article 302 of the Revised
Penal Code which reads:

ART. 302. Robbery in an uninhabited place or in private building.—Any robbery


committed in an uninhabited place or in a building other than those mentioned
in the first paragraph of article 299, if the value of the property exceeds 250
pesos, shall be punished by prision correccional in its medium and maximum
periods provided that any of the following circumstances is present:

1. If the entrance has been effected through any opening not intended for
entrance or egress.
2. If any wall, roof, floor or outside door or window has been broken.
3. If the entrance has been effected through the use of false keys, picklocks or
other similar tools.
4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle
has been broken.
5. If any closed or sealed receptacle, as mentioned in the preceding paragraph,
has been removed, even if the same be broken open elsewhere.

xxx xxx xxx

In this connection, it is relevant to note that there is an inaccuracy in the


English translation of article 302. The controlling Spanish original reads:

ART. 302. Robo en lugar no habitado o edificio particular.—El robo


cometido en un lugar no habitado o en un edificio que no sea de
los comprendidos en el parrafo primero del articulo 299, ... . (Tomo
26, Leyes Publicas 479).

The term "lugar no habitado" is erroneously translated. as "uninhabited place",


a term which may be confounded with the expression "uninhabited place" in
articles 295 and 300 of the Revised Penal Code, which is the translation
of despoblado and which is different from the term lugar no habitado in article

75
302. The term lugar no habitado is the antonym of casa habitada (inhabited
house) in article 299.

One essential requisite of robbery with force upon things under Articles 299
and 302 is that the malefactor should enter the building or dependency, where
the object to be taken is found. Articles 299 and 302 clearly contemplate that
the malefactor should enter the building (casa habitada o lugar no habitado o
edificio). If the culprit did not enter the building, there would be no robbery
with force upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688).

Thus, where the accused broke the show-window of the Bombay Palace Bazar
at Rizal Avenue, Manila and removed forty watches therefrom, the crime was
theft and not robbery because he did not enter the building. The show-window
was outside the store. (People vs. Adorno, CA 40 O. G. 567, per
Montemayor, J., who later became a member of this Court). *

In the instant case, the chicken coop where the six roosters were taken cannot
be considered a building within the meaning of article 302. Not being a
building, it cannot be said that the accused entered the same in order to
commit the robbery by means of any of the five circumstances enumerated in
article 302.

The term "building" in article 302, formerly 512 of the old Penal Code, was
construed as embracing any structure not mentioned in article 299 (meaning
not an "inhabited house or public building or edifice devoted to worship" or any
dependency thereof) used for storage and safekeeping of personal property. As
thus construed, a freight car used for the shipment of sugar was considered a
private building. The unnailing of a strip of cloth nailed over the door, the
customary manner of sealing a freight car, was held to constitute breaking by
force within the meaning of article 512, now article 302. (U.S. vs. Magsino, 2
Phil. 710).

The ruling in the Magsino case is in conflict with the rulings of the Supreme
Court of Spain that a railroad employee who, by force, opens a sealed or locked
receptacle deposited in a freight car, does not commit robbery. He is guilty of
theft because a railroad car is neither a house nor a building within the meaning
of article 302 which corresponds to article 525 of the 1870 Spanish Penal
Code. Article 302 refers to houses or buildings which, while not actually
inhabited, are habitable. Thus, a pig sty is not a building within the meaning of
article 302. The stealing of hogs from a pig sty is theft and not robbery,
although the culprit breaks into it. Article 302 refers to habitable buildings.
(Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo
Codigo Penal 636-7, 642, which in turn cites the decisions of the Spanish
Supreme Court dated March 2, 1886 and April 25, 1887). **

As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which
is known in the dialect as tangkalor kulungan, is about five yards long, one
yard wide and one yard high. It has wooden stilts and bamboo strips as bars.
The coop barely reaches the shoulder of a person of average height like Baylon.
It is divided into six compartments or cages. A compartment has an area of less
than one cubic yard. A person cannot be accommodated inside the cage or
compartment. It was not intended that a person should go inside that
compartment. The taking was effected by forcibly opening the cage and putting
the hands inside it to get the roosters.

76
Therefore, the taking of the six roosters from their coop should be
characterized as theft and not robbery. The assumption is that the accused
were animated by single criminal impulse. The conduct of the accused reveals
that they conspired to steal the roosters. The taking is punishable as a single
offense of theft. Thus, it was held that the taking of two roosters in the same
place and on the same occasion cannot give rise to two crimes of theft (People
vs. De Leon, 49 Phil. 437, citing decision of Supreme Court of Spain dated July
13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320; People vs.
Villanueva, 49 O.G. 5448, L-10239, August 7, 1953).

Nocturnity and use of a motor vehicle are aggravating. Those circumstances


facilitated the commission of the theft. The accused intentionally sought the
cover of night and used a motor vehicle so as to insure the success of their
nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon, 104
Phil. 372).

Also to be appreciated against appellants Suyo and Brillantes is the


aggravating circumstance of recidivism which was alleged in the information.
They admitted their previous convictions for theft (130, 132 tsn; Exhs. I and J;
Art. 14[9], Revised Penal Code).

The theft of six roosters valued at six hundred pesos is punishable by prision
correccional in its minimum and medium periods (Art. 309[3], Revised Penal
Code). That penalty should be imposed in its maximum period because only
aggravating circumstances are present (Art. 64[3], Revised Penal Code).

Although recidivists, appellants Suyo and Brillantes are not habitual


delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No.
4103).

With respect to the killing of Patrolman Jabatan, it has already been noted that
the evidence for the prosecution points to Jaranilla as the malefactor who shot
that unfortunate peace officer. The killing was homicide because it was made
on the spur of the moment. The treacherous mode of attack was not
consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil.
926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).

The twenty-four year old Jabatan was an agent of authority on night duty at
the time of the shooting. He was wearing his uniform. The killing should be
characterized as a direct assault (atentado) upon an agent of authority (Art.
148, Revised Penal Code) complexed with homicide. The two offenses resulted
from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307;
People vs. Lojo, Jr., 52 Phil. 390).

The evidence for the prosecution does not prove any conspiracy on the part of
appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to
steal the fighting cocks. The conspiracy is shown by the manner in which they
perpetrated the theft. They went to the scene of the crime together. They left
the yard of Baylon's residence, each carrying two roosters. They all boarded the
getaway truck driven by Gorriceta.

The theft was consummated when the culprits were able to take possession of
the roosters. It is not an indispenable element of theft that the thief carry, more
or less far away, the thing taken by him from its owner (People vs. Mercado, 65
Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil. 754).

77
It is not reasonable to assume that the killing of any peace officer, who would
forestall the theft or frustrate appellants' desire to enjoy the fruits of the crime,
was part of their plan. There is no evidence to link appellants Suyo and
Brillantes to the killing of Jabatan, except the circumstance that they were
with Jaranilla in the truck when the latter shot the policeman. Gorriceta
testified that Suyo did not do anything when Jabatan approached the right side
of the truck and came in close proximity to Jaranilla who was on the extreme
right. Brillantes pulled his revolver which he did not fire (47, 53-55 tsn). Mere
presence at the scene of the crime does not necessarily make a person a co-
principal thereof.

Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead


of taking the witness stand to refute the testimony of Gorriceta, Jaranilla
escaped from jail. That circumstance is an admission of guilt.

The instant case is different from People vs. Mabassa, 65 Phil. 568 where the
victim was killed on the occasion when the accused took his chickens under
the house. It is distinguishable from the People vs. Gardon, 104 Phil. 372
and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the Solicitor
General) where the robbery was clearly proven and the homicide was
perpetrated on the occasion of the robbery. As already noted, theft, not
robbery, was committed in this case.

The situation in this case bears some analogy to that found in the People vs.
Basisten, 47 Phil. 493 where the homicide committed by a member of the band
was not a part of the common plan to commit robbery. Hence, only the person
who perpetrated the killing was liable for robbery with homicide. The others
were convicted of robbery only.

There is a hiatus in the evidence of the prosecution as to the participation of


Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already stated, no
robbery with homicide was committed. Therefore, it cannot be concluded that
those two appellants have any responsibility for Jabatan's death. Their
complicity in the homicide committed by Jaranilla has not been established.

WHEREFORE, the judgment of the trial court convicting appellants Ricardo


Suyo and Franco Brillantes of robbery with homicide is reversed. They are
acquitted of homicide on the ground of reasonable doubt.

As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they
are (a) each sentenced to an indeterminate penalty of six (6) months of arresto
mayor as minimum to four (4) years and two (2) months ofprision
correccional as maximum and (b) ordered to indemnify solidarily the
complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each
appellant should pay one-third of the costs.

As to the liability of Elias Jaranilla for theft and homicide, with direct assault
upon an agent of authority, trial court should render a new judgment
consistent with this opinion (See Sec. 19, Art. IV, Constitution).

So ordered.

G.R. No. L-18510 January 31, 1964


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ALBERTO M.
SABBUN, defendant-appellee.
LABRADOR, J.:

78
This is an appeal prosecuted by the Republic against an order of the Court of
First Instance of Cagayan, Hon. Roberto Zurbano, presiding, sustaining a
motion of the accused-appellee in the above-entitled case to quash the
information with respect to collections made by accused-appellee four years
prior to January 19, 1959, the date of filing of the information.

On January 19, 1959, the fiscal filed an information accusing the accused-
appellee of violation of Republic Act No. 145, as follows:

The undersigned accuses Alberto M. Sabbun for Violation of Republic Act


No. 145, committed as follows:

That in the month of December, 1949, and subsequent thereafter, in the


municipality of Abulug, province of Cagayan, and within the jurisdiction
of this Honorable Court, the said accused Alberto M. Sabbun, being the
one who helped and assisted the spouses Benito Dacquioag, (now
deceased) and Juana Acluba Vda. de Dacquioag, in the preparation,
presentation and prosecution of their CLAIMS for benefits under the laws
of the United States administered by the United States Veteran
Administration, Manila, Philippines, in connection with the death of their
son Veteran Federico Dacquioag, during the last World War, did then
and there willfully, unlawfully and feloniously, directly solicit, charging
and receive as his fee and compensation for his services as follows, to
wit: the amount of P600.00 sometimes in December, 1949, from the two
checks received by the said spouses; the total amount of P1,480.00 as
deductions taken from the monthly pensions of said spouses beginning
January, 1950, to February, 1956, inclusive; and the amount of P170.00
as deduction taken from the monthly pensions of the surviving spouse
Juana Acluba Vda. de Dacquioag, beginning March, 1956, to September,
1957, inclusive; which total amount of P20.00 each for every claim as
authorized by Republic Act No. 145, to the damage and prejudice of the
said spouses Benito Dacquioag and Juana Acluba Vda. de Dacquioag in
the total amount of P2,210.00, representing the balance thereof after
deducting the sum of P40.00 as total fees for the two claims of the said
spouses.

Upon the filing of the above information, counsel for the accused moved to
quash it, alleging that the criminal action charged has been extinguished and
that such information charges more than one offense. The court sustained the
motion as to collections made 4 years prior to the filing of the information but
denied it as to those made within the four-year period. Against this order the
Republic has appealed, contending that the offense charged in the information
is a continuing offense and the prescriptive period for the offense began only
from September, 1957 when the crime was first discovered, and that in any
case prescriptive period is 8 years and not 4 years as found by the trial court.

Without considering the other legal issues raised in the appeal. We hold that
the offense charged is a continuing offense. The first collection of P600 made in
1949 is an integral part of the offense committed, and so are the collections
thereafter up to September, 1957. The collections made on different dates, i.e.,
P600 in December 1949; P1,480 from January, 1950 to February, 1956; the
amount of P170 from March, 1956 to September, 1957; are all part of the fees
agreed upon in compensation for the service rendered in filing the claim, and
collecting the pensions received by the offended party from time to time. The
periodical collections form part of a single criminal offense of collecting a fee
which is more than the prescribed amount fixed by the law. The collections

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were impelled by the same motive, that of collecting fees for services rendered,
and all acts of collection were made under the same criminal impulse (People
vs. Lawas, G.R. No. L-7618, June 30, 1955). Only one offense was, therefore,
committed and since the last act of collection was made within the period of
prescription, the offense has not prescribed as yet at the time of the filing of the
information. The offense may not be considered divided into different acts, each
act subject to prescription independently of the others.1äwphï1.ñët

WHEREFORE, the order appealed from is hereby set aside and the court below
is hereby ordered to proceed with the case in accordance herewith. Without
costs. So ordered.

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