THIRD DIVISION BGB Industrial Textile Mills, Inc.

(BGB) in the total amount

of P10,000,000.00.As security for the obligation, private respondent
METROPOLITAN BANK & TRUST COMPANY, G.R. No. 155647 Benjamin Go (now deceased), being an officer of BGB, executed a
Petitioner, Continuing Surety Agreement[3] in favor of Metrobank, binding himself
Present: solidarily with BGB to pay Metrobank the said amount of P10,000,000.00.

YNARES-SANTIAGO, J., In November 1988, private respondent Jimmy Go, as general manager of
- versus - Chairperson, BGB, applied for eleven (11) commercial letters of credit to cover the
AUSTRIA-MARTINEZ, shipment of raw materials and spare parts. Accordingly, Metrobank issued
CHICO-NAZARIO, the 11 irrevocable letters of credit to BGB. The merchandise/shipments
NACHURA, and were delivered to and accepted by BGB on different dates. Consequently, 11
REYES, JJ. trust receipts were executed by BGB thru Jimmy Go and Benjamin Go, as
JIMMY GO and BEMJAMIN GO BAUTISTA alias BENJAMIN entrustees, in favor of Metrobank as entruster. The letters of credit and
GO, Promulgated: their corresponding trust receipts are listed below:
Respondents.
November 23, 2007 Letter of Credit No. Expiry Date of Trust Amount of Trust Receipt
Receipt
x------------------------------------------------------------------------------------x
DIV88-1941NC[4] Feb. 18, 1989 P1,625,395.38[5]
DIV88-1940NC[6] March 04, 1989 P3,011,249.71[7]
DECISION DIV88-1925NC[8] March 07, 1989 P 508,252.16[9]
DIV88-1926NC[10] March 07, 1989 P 626,165.28[11]
NACHURA, J.:

DIV88-1924NC[12] March 14, 1989 P 452,289.55[13]

DIV88-1930NC[14] April 04, 1989 P 660,348.00[15]
Petitioner Metropolitan Bank & Trust Company (Metrobank) urges this DIV88-1931NC[16] April 04, 1989 P 594,313.20[17]
Court to review on certiorari under Rule 45 of the 1997 Rules of Civil DIV88-1923NC[18] April 10, 1989 P 358,113.33[19]
Procedure the Decision dated August 15, 2002 and the Resolution DIV88-1951NC[20] April 12, 1989 P1,720,882.07[21]
dated October 15, 2002, both of the Court of Appeals in CA-G.R. SP No. DIV88-1932NC[22] April 19, 1989 P 244,250.26[23]
61544.[1] DIV88-1952NC[24] May 25, 1989 P1,413,999.11[25]

By the terms of the trust receipts, BGB agreed to hold the goods in trust for
The Facts of the Case
Metrobank and, in case of sale of the goods, to hand the proceeds to the
bank to be applied against the total obligation object of the trust receipts.
On September 30, 1988, Metrobank, through its Assistant Vice- President
Leonardo B. Lejano, executed a Credit Line Agreement[2] in favor of its client,

1
On maturity dates of the trust receipts, because the goods remained unsold,
BGB and Jimmy and Benjamin Go failed to satisfy their obligation.
Metrobank filed three (3) separate complaints against BGB, for collection of
sum of money equivalent to the value of the goods subject of the trust
receipts. The cases were filed with the Makati Regional Trial Court and
docketed as Civil Case Nos. 93-496, 93-509, and 93-910.
Later, Metrobank instituted 11 criminal charges against Jimmy and
Benjamin Go for violation of Presidential Decree No. 115 (Trust Receipts
Law) before the Office of the City Prosecutor of Manila.
After preliminary investigation, the Office of the City Prosecutor of Manila
issued a Resolution[26] in I.S. Nos. 94D-09945-55 dated May 31,
1995 recommending the dismissal of the case, viz.:
The liability of respondents is only civil in nature in the absence of
commission and misappropriation. Respondents are liable ex-contractu for
breach of the Letters of Credit Trust Receipt.
In the instant case, the goods subject of the trust receipts have not been
sold, so there is (sic) no proceeds to deliver to the bank.
Granting for the sake of argument that respondents failed to account for
said goods, the failure is only a mere disputable presumption which has
been overturned by the submission of an inventory showing that the goods
are intact and in the warehouse in Bataan.
Considering that the goods are still intact in the [respondents] warehouse at
the Bataan Export Processing Zone, considering further the fact that the
goods were never processed, and considering finally that the goods have
not been sold, ergo, there is no violation of [the] Presidential Decree. As
already stated, respondents liability is only civil in nature.
On June 22, 1995, Metrobank filed a motion for reconsideration, but the
same was denied for lack of merit in the Review
Resolution[27] dated October 25, 1999.Metrobank appealed to the
Department of Justice. On September 5, 2000, then Acting Secretary of
Justice, Ramon J. Liwag, rendered a Resolution[28] dismissing the appeal on
two grounds: (1) the resolution issued by the City Fiscal is in accord with law
and evidence; and (2) Metrobank failed to submit proof of service of a copy
of the appeal to the prosecutor either by personal service or registered mail
as required by Section 3 of Department Order No. 223.
Metrobank went to the Court of Appeals via a petition for certiorari under
Rule 65 of the 1997 Rules of Civil Procedure. However, the Court of Appeals
dismissed the petition for lack of merit. Metrobank moved to reconsider the
dismissal, but the motion was denied. Hence, this petition.
The Issues
The reasons given by Metrobank for the allowance of its petition are as
follows:
First Reason
BOTH THE RESOLUTION AND THE DECISION OF THE COURT OF APPEALS
DELIBERATELY IGNORED THE GLARING VIOLATION COMMITTED BY THE
RESPONDENTS OF BOTH THE PROVISIONS OF THE SUBJECT TRUST RECEIPTS
AND OF PRESIDENTIAL DECREE NO. 115.
Second Reason
BOTH THE RESOLUTION AND THE DECISION OF THE COURT OF APPEALS
DELIBERATELY IGNORED THE FACT THAT THE OFFER MADE BY THE
RESPONDENTS TO ALLEGEDLY RETURN THE SUBJECT MERCHANDISE IS A
MERE AFTERTHOUGHT.
Third Reason
BOTH THE RESOLUTION AND THE DECISION DELIBERATELY IGNORED THE
FACT THAT A VIOLATION OF PRESIDENTIAL DECREE NO. 115, AS SETTLED
JURISPRUDENCE HOLD, IS AN OFFENSE AGAINST PUBLIC ORDER AND NOT
MERELY AGAINST PROPERTY.[29]
Petitioner Metrobank ascribed error to the Office of the City Prosecutor of
Manila when it found that the liability of respondents Jimmy and Benjamin
2
Go was only civil in nature, i.e., to return the merchandise subject of the 11
trust receipts, considering that they were never sold, and to pay their
obligation under the letters of credit. Citing jurisprudence,[30] it contends
that Section 13,[31] the penal provision of the Trust Receipts Law,
encompasses any act violative of an obligation covered by the trust receipt
and is not limited to transactions in goods which are to be sold (retailed),
reshipped, stored, and processed as a component of a product ultimately
sold. It posits that a violation of the Trust Receipts Law can be committed by
mere failure of the entrustee to discharge any of the obligations imposed
upon him under Section 9[32] of the said law.
According to Metrobank, Jimmy and Benjamin Gos offer to deliver the
merchandise subject of the trust receipts cannot exculpate them from
criminal liability because they failed to offer to surrender and to actually
surrender the goods upon maturity of the trust receipts and even when
several demands were made upon them. Stated differently, it was
Metrobanks position that there was already a violation of the Trust Receipts
Law committed by Jimmy and Benjamin Go even before they made their
offer to return the merchandise to Metrobank in their pleadings before the
Office of the City Prosecutor of Manila. Metrobank claimed that the belated
offer of Jimmy and Benjamin Go to return the goods was a mere
afterthought in order to evade indictment and prosecution.
Metrobank further argues that the dismissal by the Office of the City
Prosecutor of Manila of the 11 criminal charges for violation of the Trust
Receipts Law against Jimmy and Benjamin Go for want of probable cause,
grounded on the absence of conversion or misappropriation, is tantamount
to holding that a violation of the Trust Receipts Law is merely a crime
against property and not against public order, contrary to prevailing
jurisprudence.
The Ruling of the Court
After a judicious study of the records of this case, this Court does not find
any cogent reason to reverse the assailed Decision and Resolution of the
Court of Appeals, and the Resolutions of the Office of the City Prosecutor of
Manila and of the Secretary of Justice.
First. The issues raised in this petition are substantially factual. Essentially,
Metrobank urges this Court to determine whether or not Jimmy and
Benjamin Go failed to turn over the proceeds of the sale of the goods or to
return them, if unsold, in accordance with the terms of the 11 trust
receipts. This failure, Metrobank adds, amounts to a violation of Section 13
of the Trust Receipts Law and warrants the prosecution of respondents for
estafa under Article 315, paragraph 1(b)[33] of the Revised Penal Code.
In an appeal via certiorari, only questions of law may be raised because this
Court is not a trier of facts.[34] Metrobank wants to make this case an
exception to the rule, as it attributes to the Office of the City Prosecutor of
Manila, the Secretary of Justice, and the Court of Appeals a
misapprehension of the facts. Unfortunately, there is no adequate support
for this imputation.
In order that respondents Jimmy and Benjamin Go may be validly
prosecuted for estafa under Article 315, paragraph 1(b) of the Revised Penal
Code, in relation to Section 13 of the Trust Receipts Law, the following
elements must be established: (a) they received the subject goods in trust
or under the obligation to sell the same and to remit the proceeds thereof
to Metrobank, or to return the goods if not sold; (b) they misappropriated
or converted the goods and/or the proceeds of the sale; (c) they performed
such acts with abuse of confidence to the damage and prejudice of
Metrobank; and (d) demand was made on them by Metrobank for the
remittance of the proceeds or the return of the unsold goods.[35]
The Office of the City Prosecutor and the Secretary of Justice had identical
findings that the element of misappropriation or conversion is absent, and
that Jimmy and Benjamin Go could not deliver the proceeds of the sale of
the merchandise to Metrobank because the goods remained unsold. Both
offices similarly found that the failure of the respondents to account for the
proceeds of the sale or of the goods only created a disputable presumption
that either the proceeds or the goods themselves were converted or
misappropriated, but the presumption was overturned when the goods
were offered to be inventoried and returned as they remained intact in the
warehouse at the Bataan Export Processing Zone.Accordingly, they both
ruled that the liability of Jimmy and Benjamin Go was merely civil in nature,
and the criminal complaints were dismissed for lack of probable cause.
3
Declaring that the Office of the City Prosecutor did not commit grave abuse
of discretion, the Court of Appeals likewise made a factual finding that
Jimmy and Benjamin Go offered to return the goods even prior to the filing
of the civil cases against them, although the offer was not accepted because
Metrobank appeared more interested in collecting the amount it advanced
under the letters of credit. It also found that Metrobank failed to prove its
demand for the return of the goods.
Thus, even if we accommodate the petitioners plea to review the cases
factual milieu, we still have to agree with the findings of fact of the Office of
the City Prosecutor and of the Court of Appeals. These findings appear to be
supported by the evidence on record. The prosecution for estafa under
Article 315, paragraph 1(b) of the Revised Penal code, cannot prosper
because the second (misappropriation/conversion) and the fourth (demand)
elements of the offense are not present.
Under the pro-forma trust receipts subject of this case, Jimmy and Benjamin
Go, as entrustees, agreed to hold the goods (whether in their original,
processed or manufactured state, and irrespective of the fact that a
different merchandise is used in completing such manufacture) in trust for
Metrobank, as its exclusive property, with liberty to sell them for cash only
for the latters account, but without authority to make any other disposition
whatsoever of the said goods or any part (or the proceeds) thereof by way
of conditional sale, pledge, or otherwise. They further agreed that in case of
sale of the goods, or if the goods are used for the manufacture of finished
products and are sold, they will turn over the proceeds to Metrobank to be
applied against their total obligation under the trust receipts and for the
payment of other debts to Metrobank.
It is noteworthy that Jimmy and Benjamin Go processed the goods into
textiles, to be sold for cash only, and that not all of the merchandise were
sold such that they were able to remit only enough proceeds to fully settle
their accounts under Letters of Credit-Trust Receipt Nos. 1922 and 1939,
which were not subject of the 11 criminal complaints filed by
Metrobank. Metrobank wants us to interpret this as confirmation that
Jimmy and Benjamin Go had sold all the other merchandise but deliberately
failed to turn over their corresponding proceeds. However, the Court sees
this circumstance for what it simply and truly is, i.e., that Jimmy and
Benjamin Go exerted efforts to comply with their obligation to sell the
merchandise and remit the proceeds thereof. Unfortunately, the rest of the
merchandise remained unsold in the warehouse at the Bataan Export
Processing Zone, such that no proceeds thereof could be remitted to
Metrobank.
This Court also observes that the same trust receipts provide that
Metrobank has the option to take possession of the goods upon default of
Jimmy and Benjamin Go on any of their obligations and to sell them, with
the proceeds thereof to be applied to the principal obligation and also to
the expenses to be incurred by Metrobank in selling the same.[36] But
Metrobank did not exercise this option. Instead, it filed three (3) complaints
to collect the value of the merchandise. Jimmy and Benjamin Go offered to
return the merchandise to Metrobank even before these civil cases were
filed. Then, Jimmy and Benjamin Go reiterated the offer to return the goods
in their answer to the civil complaints. Again, Metrobank did not accept the
offer, and instead filed the 11 criminal complaints for alleged violation of
the Trust Receipts Law to be prosecuted as estafa under Article 315,
paragraph 1(b) of the Revised Penal Code. This chain of events validates the
finding of the Court of Appeals that Metrobank is not interested in the
return of the goods but only in collecting the money it extended to the
respondents.
Furthermore, the trust receipts uniformly contain the following provision:
Failure on the part of the ENTRUSTEE to account to the BANK/ENTRUSTER
for the goods/documents/instruments received in trust and/or for the
proceeds of the sale thereof within thirty (30) days from demand made by
the BANK/ENTRUSTER shall constitute an admission that the ENTRUSTEE has
converted or misappropriated said goods/documents/instruments for the
personal benefit of the ENTRUSTEE and to the detriment and prejudice of
the BANK/ENTRUSTER, and the BANK/ENTRUSTER is forthwith authorized to
file and prosecute the corresponding and appropriate action, civil or
criminal, against the ENTRUSTEE.[37]
Yet, not one of the 11 criminal complaints was accompanied by a demand
letter to show that Metrobank demanded the remittance of the proceeds of
the sale of the goods or the return of goods, if unsold. We find this
4
deficiency exceptionally revealing, especially considering that the said trust
receipts had different maturity dates.
Second. The trust receipts subject of this case partake of the nature of
contracts of adhesion. A contract of adhesion is defined as one in which one
party imposes a ready-made form of contract which the other party may
accept or reject, but which the latter cannot modify; one party prepares the
stipulations in the contract, while the other party merely affixes his
signature or his adhesion thereto, giving no room for negotiation, and
resulting in deprivation of the latter of the opportunity to bargain on equal
footing.[38]
In this case, the trust receipts were prepared solely by Metrobank with
Jimmy and Benjamin Go having no choice but to adhere entirely to their
provisions. In fact, the trust receipts stipulated that the goods subject
thereof were the exclusive property of Metrobank, contrary to the essence
of a trust receipt.
A trust receipt is considered a security transaction designed to provide
financial assistance to importers and retail dealers who do not have
sufficient funds or resources to finance the importation or purchase of
merchandise, and who may not be able to acquire credit except through
utilization, as collateral, of the merchandise imported or purchased. It is a
document in which is expressed a security transaction where the lender,
having no prior title to the goods on which the lien is to be constituted, and
not having possession over the same since possession thereof remains in
the borrower, lends his money to the borrower on security of the goods
which the borrower is privileged to sell, clear of the lien, with an agreement
to pay all or part of the proceeds of the sale to the lender. It is a security
agreement pursuant to which a bank acquires a security interest in the
goods. It secures a debt, and there can be no such thing as security interest
that secures no obligation.[39]
The subject trust receipts, being contracts of adhesion, are not per se invalid
and inefficacious. But should there be ambiguities therein, such ambiguities
are to be strictly construed against Metrobank, the party that prepared
them.[40]
There is no doubt as to the obligation of Jimmy and Benjamin Go to turn
over the proceeds of the sale of the goods or to return the unsold
goods. However, an ambiguity exists as to when this obligation arises,
whether upon maturity of the trust receipts or upon demand by
Metrobank. A strict construction of the provisions of the contracts of
adhesion dictates that the reckoning point should be the demand made by
Metrobank.
As already discussed above, Jimmy and Benjamin Go turned over the
proceeds of the goods sold under the two letters of credit/trust receipts
which were not subject of the criminal cases. They also made the offer to
return the unsold goods covered by the eleven trust receipts even before
the three civil cases were filed against them. The offer was reiterated in
their answer. More importantly, the unsold goods remained intact, contrary
to the claim of Metrobank that they had misappropriated or converted the
same. While there was a stipulation of a presumptive admission on the part
of Jimmy and Benjamin Go of misappropriation or conversion upon failure
to account for the goods or for the proceeds of the sale thereof within 30
days from demand, which will authorize Metrobank to pursue legal
remedies in court, the fact of demand made by Metrobank was not
established by competent evidence. Except for the bare allegation that it did
so in the 11 criminal complaints, no letter of demand accompanied all of the
criminal complaints.
As to the other obligations under the trust receipts adapted from Section 9
of the Trust Receipts Law, there is no sufficient evidence proffered by
Metrobank that Jimmy and Benjamin Go had actually violated them. What
the law punishes is the dishonesty and abuse of confidence in the handling
of money or goods to the prejudice of another, whether the latter is the
owner.[41] The malum prohibitumnature of the offense notwithstanding, the
intent to misuse or misappropriate the goods or their proceeds on the part
of Jimmy and Benjamin Go should have been proved. Unfortunately, no
such proof appears on record.[42]
In the prosecution of criminal cases, it is the complainant who has the
burden to prove the elements of the crime which the respondents are
probably guilty of.[43] Obviously, Metrobank failed to discharge this burden.
Indeed, there is neither error nor grave abuse of discretion which can be
attributed to the Office of the City Prosecutor of Manila when it dismissed
the criminal complaints for lack of probable cause. In the absence of grave
5
abuse of discretion on the part of the Office of the City Prosecutor of THIRD DIVISION
Manila, this Court must not interfere in its findings, considering that full
discretionary authority has been delegated to the latter in determining G.R. No. 152644 February 10, 2006
whether or not a criminal charge should be instituted.[44] With greater
reason should we respect this finding, as it had been uniformly affirmed not JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B.
HERNANDEZ, Petitioners,
only by the reviewing prosecutor but also by the Secretary of Justice and by
vs.
the Court of Appeals. PEOPLE OF THE PHILIPPINES, Respondent.

WHEREFORE, the petition is DENIED for lack of merit. Accordingly, the DECISION
assailed Decision dated August 15, 2002 and the Resolution dated October
15, 2002 of the Court of Appeals in CA-G.R. SP No. 61544 are AFFIRMED. CARPIO, J.:

SO ORDERED. The Case

This is a petition for review1 of the Decision2 dated 5 November 2001 and the
Resolution dated 14 March 2002 of the Court of Appeals. The 5 November 2001
Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque, Branch
94, in a suit to quash Informations filed against petitioners John Eric Loney, Steven
Paul Reid, and Pedro B. Hernandez ("petitioners"). The 14 March 2002 Resolution
denied petitioners’ motion for reconsideration.

The Facts

Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the
President and Chief Executive Officer, Senior Manager, and Resident Manager for
Mining Operations, respectively, of Marcopper Mining Corporation ("Marcopper"), a
corporation engaged in mining in the province of Marinduque.

Marcopper had been storing tailings3 from its operations in a pit in Mt. Tapian,
Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and
Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the
tunnel’s end. On 24 March 1994, tailings gushed out of or near the tunnel’s end. In a
few days, the Mt. Tapian pit had discharged millions of tons of tailings into the Boac
and Makalupnit rivers.

In August 1996, the Department of Justice separately charged petitioners in the

Municipal Trial Court of Boac, Marinduque ("MTC") with violation of Article
91(B),4 sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code
of the Philippines ("PD 1067"),5 Section 86 of Presidential Decree No. 984 or the
National Pollution Control Decree of 1976 ("PD 984"), 7 Section 1088 of Republic
Act No. 7942 or the Philippine Mining Act of 1995 ("RA 7942"), 9 and Article
36510 of the Revised Penal Code ("RPC") for Reckless Imprudence Resulting in
Damage to Property.11
6
Petitioners moved to quash the Informations on the following grounds: (1) the
Informations were "duplicitous" as the Department of Justice charged more than one
offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were
not yet officers of Marcopper when the incident subject of the Informations took
place; and (3) the Informations contain allegations which constitute legal excuse or
justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 ("Joint Order"), the MTC 12 initially deferred
ruling on petitioners’ motion for lack of "indubitable ground for the quashing of the
[I]nformations x x x." The MTC scheduled petitioners’ arraignment in February
1997. However, on petitioners’ motion, the MTC issued a Consolidated Order on 28
April 1997 ("Consolidated Order"), granting partial reconsideration to its Joint Order
and quashing the Informations for violation of PD 1067 and PD 984. The MTC
maintained the Informations for violation of RA 7942 and Article 365 of the RPC.
The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing to "mine
tailings" which were precipitately discharged into the Makulapnit and Boac Rivers
due to breach caused on the Tapian drainage/tunnel due to negligence or failure to
institute adequate measures to prevent pollution and siltation of the Makulapnit and
Boac River systems, the very term and condition required to be undertaken under the
Environmental Compliance Certificate issued on April 1, 1990.
The allegations in the informations point to same set [sic] of evidence required to
prove the single fact of pollution constituting violation of the Water Code and the
Pollution Law which are the same set of evidence necessary to prove the same single
fact of pollution, in proving the elements constituting violation of the conditions of
ECC, issued pursuant to the Philippine Mining Act. In both instances, the terms and
conditions of the Environmental Compliance Certificate were allegedly violated. In
other words, the same set of evidence is required in proving violations of the three
(3) special laws.
After carefully analyzing and weighing the contending arguments of the parties and
after taking into consideration the applicable laws and jurisprudence, the Court is
convinced that as far as the three (3) aforesaid laws are concerned, only the
Information for [v]iolation of Philippine Mining Act should be maintained. In other
words, the Informations for [v]iolation of Anti-Pollution Law (PD 984) and the
Water Code (PD 1067) should be dismissed/quashed because the elements
constituting the aforesaid violations are absorbed by the same elements which
constitute violation of the Philippine Mining Act (RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the
Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the
Anti-Pollution Law x x x are hereby DISMISSED or QUASHED and Criminal
Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine Mining Act are
hereby retained to be tried on the merits.
The Information for [v]iolation of Article 365 of the Revised Penal Code should also
be maintained and heard in a full blown trial because the common accusation therein
is reckless imprudence resulting to [sic] damage to property. It is the damage to
property which the law punishes not the negligent act of polluting the water system.
The prosecution for the [v]iolation of Philippine Mining Act is not a bar to the
prosecution for reckless imprudence resulting to [sic] damage to property. 13
The MTC re-scheduled petitioners’ arraignment on the remaining charges on 28 and
29 May 1997. In the hearing of 28 May 1997, petitioners manifested that they were
willing to be arraigned on the charge for violation of Article 365 of the RPC but not
on the charge for violation of RA 7942 as they intended to appeal the Consolidated
Order in so far as it maintained the Informations for that offense. After making of
record petitioners’ manifestation, the MTC proceeded with the arraignment and
ordered the entry of "not guilty" pleas on the charges for violation of RA 7942 and
Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the Regional Trial Court,
Boac, Marinduque, assailing that portion of the Consolidated Order maintaining the
Informations for violation of RA 7942. Petitioners’ petition was raffled to Branch 94.
For its part, public respondent filed an ordinary appeal with the same court assailing
that portion of the Consolidated Order quashing the Informations for violation of PD
1067 and PD 984. Public respondent’s appeal was raffled to Branch 38. On public
respondent’s motion, Branch 38 ordered public respondent’s appeal consolidated
with petitioners’ petition in Branch 94.
The Ruling of Branch 94
In its Resolution14 of 20 March 1998, Branch 94 granted public respondent’s appeal
but denied petitioners’ petition. Branch 94 set aside the Consolidated Order in so far
as it quashed the Informations for violation of PD 1067 and PD 984 and ordered
those charges reinstated. Branch 94 affirmed the Consolidated Order in all other
respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of the opinion that there
can be no absorption by one offense of the three other offenses, as [the] acts
penalized by these laws are separate and distinct from each other. The elements of
proving each violation are not the same with each other. Concededly, the single act
of dumping mine tailings which resulted in the pollution of the Makulapnit and Boac
rivers was the basis for the information[s] filed against the accused each charging a
distinct offense. But it is also a well-established rule in this jurisdiction that –
7
"A single act may offend against two or more entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional fact or element
which the other does not, an acquittal or conviction or a dismissal of the information
under one does not bar prosecution under the other. x x x."
xxxx
[T]he different laws involve cannot absorb one another as the elements of each crime
are different from one another. Each of these laws require [sic] proof of an additional
fact or element which the other does not although they stemmed from a single act. 15
Petitioners filed a petition for certiorari with the Court of Appeals alleging that
Branch 94 acted with grave abuse of discretion because (1) the Informations for
violation of PD 1067, PD 984, RA 7942 and the Article 365 of the RPC "proceed
from and are based on a single act or incident of polluting the Boac and Makalupnit
rivers thru dumping of mine tailings" and (2) the duplicitous nature of the
Informations contravenes the ruling in People v. Relova.16Petitioners further
contended that since the acts complained of in the charges for violation of PD 1067,
PD 984, and RA 7942 are "the very same acts complained of" in the charge for
violation of Article 365 of the RPC, the latter absorbs the former. Hence, petitioners
should only be prosecuted for violation of Article 365 of the RPC. 17
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94’s
ruling. The appellate court held:
The records of the case disclose that petitioners filed a motion to quash the
aforementioned Informations for being duplicitous in nature. Section 3 of Rule 117
of the Revised Rules of Court specifically provides the grounds upon which an
information may be quashed. x x x
xxxx
[D]uplicity of Informations is not among those included in x x x [Section 3, Rule
117].
xxxx
We now go to petitioners’ claim that the resolution of the public respondent
contravened the doctrine laid down in People vs. Relova for being violative of their
right against multiple prosecutions.
In the said case, the Supreme Court found the People’s argument with respect to the
variances in the mens rea of the two offenses being charged to be correct. The Court,
however, decided the case in the context of the second sentence of Article IV (22) of
the 1973 Constitution (now under Section 21 of Article III of the 1987 Constitution),
rather than the first sentence of the same section. x x x
xxxx
[T]he doctrine laid down in the Relova case does not squarely apply to the case at
Bench since the Informations filed against the petitioners are for violation of four
separate and distinct laws which are national in character.
xxxx
This Court firmly agrees in the public respondent’s understanding that the laws by
which the petitioners have been [charged] could not possibly absorb one another as
the elements of each crime are different. Each of these laws require [sic] proof of an
additional fact or element which the other does not, although they stemmed from a
single act. x x x
xxxx
[T]his Court finds that there is not even the slightest indicia of evidence that would
give rise to any suspicion that public respondent acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in reversing the Municipal Trial Court’s
quashal of the Informations against the petitioners for violation of P.D. 1067 and
P.D. 984. This Court equally finds no error in the trial court’s denial of the
petitioner’s motion to quash R.A. 7942 and Article 365 of the Revised Penal Code. 18
Petitioners sought reconsideration but the Court of Appeals denied their motion in its
Resolution of 14 March 2002.
Petitioners raise the following alleged errors of the Court of Appeals:
I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR
IN MAINTAINING THE CHARGES FOR VIOLATION OF THE
PHILIPPINE MINING ACT (R.A. 7942) AND REINSTATING THE
CHARGES FOR VIOLATION OF THE WATER CODE (P.D. 1067) AND
POLLUTION CONTROL LAW (P.D. 984), CONSIDERING THAT:
A. THE INFORMATIONS FOR VIOLATION OF THE WATER
CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D.
984), THE PHILIPPINE MINING ACT (R.A. 7942) AND
ARTICLE 365 OF THE REVISED PENAL CODE PROCEED
8
 FROM AND ARE BASED ON A SINGLE ACT OR INCIDENT
OF POLLUTING THE BOAC AND MAKULAPNIT RIVERS
THRU DUMPING OF MINE TAILINGS.
B. THE PROSECUTION OF PETITIONERS FOR
DUPLICITOUS AND MULTIPLE CHARGES CONTRAVENES
THE DOCTRINE LAID DOWN IN PEOPLE VS. RELOVA, 148
SCRA 292 [1986 THAT "AN ACCUSED SHOULD NOT BE
HARASSED BY MULTIPLE PROSECUTIONS FOR
OFFENSES WHICH THOUGH DIFFERENT FROM ONE
ANOTHER ARE NONETHELESS EACH CONSTITUTED BY
A COMMON SET OR OVERLAPPING SETS OF TECHNICAL
ELEMENTS."
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR
IN RULING THAT THE ELEMENT OF LACK OF NECESSARY OR
ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND
IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL
CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE
ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER
CODE, POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT
CHARGED AGAINST PETITIONERS[.]19
The Issues
The petition raises these issues:
(1) Whether all the charges filed against petitioners except one should be
quashed for duplicity of charges and only the charge for Reckless
Imprudence Resulting in Damage to Property should stand; and
(2) Whether Branch 94’s ruling, as affirmed by the Court of Appeals,
contravenes People v. Relova.
The Ruling of the Court
The petition has no merit.
No Duplicity of Charges in the Present Case
Duplicity of charges simply means a single complaint or information charges more
than one offense, as Section 13 of Rule 11020 of the 1985 Rules of Criminal
Procedure clearly states:
Duplicity of offense. – A complaint or information must charge but one offense,
except only in those cases in which existing laws prescribe a single punishment for
various offenses.
In short, there is duplicity (or multiplicity) of charges when a single Information
charges more than one offense.21
Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal Procedure, duplicity of
offenses in a single information is a ground to quash the Information. The Rules
prohibit the filing of such Information to avoid confusing the accused in preparing
his defense.23 Here, however, the prosecution charged each petitioner with four
offenses, with each Information charging only one offense. Thus, petitioners
erroneously invoke duplicity of charges as a ground to quash the Informations. On
this score alone, the petition deserves outright denial.
The Filing of Several Charges is Proper
Petitioners contend that they should be charged with one offense only — Reckless
Imprudence Resulting in Damage to Property — because (1) all the charges filed
against them "proceed from and are based on a single act or incident of polluting the
Boac and Makalupnit rivers thru dumping of mine tailings" and (2) the charge for
violation of Article 365 of the RPC "absorbs" the other charges since the element of
"lack of necessary or adequate protection, negligence, recklessness and imprudence"
is common among them.
The contention has no merit.
As early as the start of the last century, this Court had ruled that a single act or
incident might offend against two or more entirely distinct and unrelated provisions
of law thus justifying the prosecution of the accused for more than one offense. 24 The
only limit to this rule is the Constitutional prohibition that no person shall be twice
put in jeopardy of punishment for "the same offense." 25 In People v. Doriquez,26 we
held that two (or more) offenses arising from the same act are not "the same" —
x x x if one provision [of law] requires proof of an additional fact or element which
the other does not, x x x. Phrased elsewise, where two different laws (or articles of
the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the same facts, if each
crime involves some important act which is not an essential element of the
other.27 (Emphasis supplied)
Here, double jeopardy is not at issue because not all of its elements are
present.28 However, for the limited purpose of controverting petitioners’ claim that
they should be charged with one offense only, we quote with approval Branch 94’s
9
comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC
showing that in each of these laws on which petitioners were charged, there is one
essential element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be established is
the dumping of mine tailings into the Makulapnit River and the entire Boac River
System without prior permit from the authorities concerned. The gravamen of the
offense here is the absence of the proper permit to dump said mine tailings. This
element is not indispensable in the prosecution for violation of PD 984 (Anti-
Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised
Penal Code. One can be validly prosecuted for violating the Water Code even in the
absence of actual pollution, or even [if] it has complied with the terms of its
Environmental Compliance Certificate, or further, even [if] it did take the necessary
precautions to prevent damage to property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the
existence of actual pollution. The gravamen is the pollution itself. In the absence of
any pollution, the accused must be exonerated under this law although there was
unauthorized dumping of mine tailings or lack of precaution on its part to prevent
damage to property.
In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is
the willful violation and gross neglect on the part of the accused to abide by the
terms and conditions of the Environmental Compliance Certificate, particularly that
the Marcopper should ensure the containment of run-off and silt materials from
reaching the Mogpog and Boac Rivers. If there was no violation or neglect, and that
the accused satisfactorily proved [sic] that Marcopper had done everything to ensure
containment of the run-off and silt materials, they will not be liable. It does not
follow, however, that they cannot be prosecuted under the Water Code, Anti-
Pollution Law and the Revised Penal Code because violation of the Environmental
Compliance Certificate is not an essential element of these laws.
On the other hand, the additional element that must be established in Art. 365 of the
Revised Penal Code is the lack of necessary or adequate precaution, negligence,
recklessness and imprudence on the part of the accused to prevent damage to
property. This element is not required under the previous laws. Unquestionably, it is
different from dumping of mine tailings without permit, or causing pollution to the
Boac river system, much more from violation or neglect to abide by the terms of the
Environmental Compliance Certificate. Moreover, the offenses punished by special
law are mal[a] prohibita in contrast with those punished by the Revised Penal Code
which are mala in se.29
Consequently, the filing of the multiple charges against petitioners, although based
on the same incident, is consistent with settled doctrine.
On petitioners’ claim that the charge for violation of Article 365 of the RPC
"absorbs" the charges for violation of PD 1067, PD 984, and RA 7942, suffice it to
say that a mala in se felony (such as Reckless Imprudence Resulting in Damage to
Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD
984, and RA 7942). What makes the former a felony is criminal intent (dolo) or
negligence (culpa); what makes the latter crimes are the special laws enacting them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals that their prosecution
contravenes this Court’s ruling in People v. Relova. In particular, petitioners cite the
Court’s statement in Relova that the law seeks to prevent harassment of the accused
by "multiple prosecutions for offenses which though different from one another are
nonetheless each constituted by a common set or overlapping sets of technical
elements."
This contention is also without merit.1avvphil.net
The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging
one Manuel Opulencia ("Opulencia") with theft of electric power under the RPC,
after the latter had been acquitted of violating a City Ordinance penalizing the
unauthorized installation of electrical wiring, violated Opulencia’s right against
double jeopardy. We held that it did, not because the offenses punished by those two
laws were the same but because the act giving rise to the charges was punished by an
ordinance and a national statute, thus falling within the proscription against multiple
prosecutions for the same act under the second sentence in Section 22, Article IV of
the 1973 Constitution, now Section 21, Article III of the 1987 Constitution. We held:
The petitioner concludes that:
"The unauthorized installation punished by the ordinance [of Batangas City] is not
the same as theft of electricity [under the Revised Penal Code]; that the second
offense is not an attempt to commit the first or a frustration thereofand that the
second offense is not necessarily included in the offense charged in the first
information."
The above argument[ ] made by the petitioner [is] of course correct. This is clear
both from the express terms of the constitutional provision involved – which reads as
follows:
"No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." x x x
10
and from our case law on this point. The basic difficulty with the petitioner’s
position is that it must be examined, not under the terms of the first sentence of Republic of the Philippines
Article IV (22) of the 1973 Constitution, but rather under the second sentence of the
Supreme Court
same section. The first sentence of Article IV (22) sets forth the general rule: the
constitutional protection against double jeopardy is not available where the second Manila
prosecution is for an offense that is different from the offense charged in the first or
prior prosecution, although both the first and second offenses may be based upon the FIRST DIVISION
same act or set of acts. The second sentence of Article IV (22) embodies an
exception to the general proposition: the constitutional protection, against double HO WAI PANG, G.R. No. 176229
jeopardy is available although the prior offense charged under an ordinance be
different from the offense charged subsequently under a national statute such as the Petitioner,
Revised Penal Code, provided that both offenses spring from the same act or set of
acts. x x x30 (Italicization in the original; boldfacing supplied)
Present:
Thus, Relova is no authority for petitioners’ claim against multiple prosecutions
based on a single act not only because the question of double jeopardy is not at issue CORONA, C.J., Chairperson,
here, but also because, as the Court of Appeals held, petitioners are being prosecuted
- versus - LEONARDO-DE CASTRO,
for an act or incident punished by four national statutes and not by an ordinance and
a national statute. In short, petitioners, if ever, fall under the first sentence of Section BERSAMIN,
21, Article III which prohibits multiple prosecution for the same offense, and not, as DEL CASTILLO, and
in Relova, for offenses arising from the same incident. VILLARAMA, JR., JJ.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5

November 2001 and the Resolution dated 14 March 2002 of the Court of Appeals. PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. October 19, 2011
SO ORDERED.

x---------------------------------------------------------
----------x

DECISION

DEL CASTILLO, J.:

Infraction of the rights of an accused during custodial investigation or the

so-called Miranda Rights render inadmissible only the extrajudicial
confession or admission made during such investigation.[1] The admissibility
of other evidence, provided they are relevant to the issue and is not
otherwise excluded by law or rules, is not affected even if obtained or taken
in the course of custodial investigation.[2]

11
Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June
16, 2006 Decision[3] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
01459 affirming the April 6, 1995 Decision[4] of the Regional Trial Court
(RTC), Branch 118 of Pasay City in Criminal Case No. 91-1592, finding him
and his co-accused, namely, Law Ka Wang, Chan Chit Yue,[5] Wu Hing Sum,
Tin San Mao[6] and Kin San Ho[7] guilty beyond reasonable doubt for violation
of Section 15, Article III[8] of Republic Act (R.A.) No. 6425 otherwise known
as the Dangerous Drugs Act of 1972. Also assailed is the January 16, 2007 CA
Resolution[9] denying the motion for reconsideration thereto.
Factual Antecedents
On September 6, 1991, at around 11:30 in the evening, United Arab
Emirates Airlines Flight No. 068 from Hongkong arrived at the Ninoy Aquino
International Airport (NAIA). Among the passengers were 13 Hongkong
nationals who came to the Philippines as tourists. At the arrival area, the
group leader Wong Kwok Wah (Sonny Wong) presented a Baggage
Declaration Form to Customs Examiner Gilda L. Cinco (Cinco), who was then
manning Lane 8 of the Express Lane. Cinco examined the baggages of each
of the 13 passengers as their turn came up. From the first traveling bag, she
saw few personal belongings such as used clothing, shoes and chocolate
boxes which she pressed. When the second bag was examined, she noticed
chocolate boxes which were almost of the same size as those in the first
bag. Becoming suspicious, she took out four of the chocolate boxes and
opened one of them. Instead of chocolates, what she saw inside was white
crystalline substance contained in a white transparent plastic. Cinco thus
immediately called the attention of her immediate superiors Duty Collector
Alalo and Customs Appraiser Nora Sancho who advised her to call the
Narcotics Command (NARCOM) and the police. Thereupon, she guided the
tourists to the Intensive Counting Unit (ICU) while bringing with her the four
chocolate boxes earlier discovered.
At the ICU, Cinco called the tourists one after the other using the passenger
manifest and further examined their bags. The bag of Law Ka Wang was first
found to contain three chocolate boxes. Next was petitioners bag which
contains nothing except for personal effects. Cinco, however, recalled that
two of the chocolate boxes earlier discovered at the express lane belong to
him. Wu Hing Sums bag followed and same yielded three chocolate boxes
while the baggages of Ho Kin San, Chan Chit Yue and Tin San Mao each
contained two or three similar chocolate boxes. All in all, 18 chocolate boxes
were recovered from the baggages of the six accused.
NARCOM Agent Neowillie de Castro corroborated the relevant testimony of
Cinco pertaining to the presence of the chocolate boxes. According to him,
he conducted a test on the white crystalline substance contained in said
chocolate boxes at the NAIA using the Mandelline Re-Agent Test.[10] The
result of his examination[11] of the white crystalline substance yielded
positive for methamphetamine hydrochloride or shabu.Thereafter, the
chocolate boxes were bundled together with tape, placed inside a plastic
bag and brought to the Inbond Section.
The following day, September 7, 1991, the 13 tourists were brought to the
National Bureau of Investigation (NBI) for further questioning. The
confiscated stuff were turned over to the Forensic Chemist who weighed
and examined them. Findings show that its total weight is 31.1126 kilograms
and that the representative samples were positive for methamphetamine
hydrochloride.[12] Out of the 13 tourists, the NBI found evidence for violation
of R.A. No. 6425 only as against petitioner and his five co-accused.
Accordingly, six separate Informations all dated September 19, 1991 were
filed against petitioner and his co-accused. These Informations were
docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however,
petitioner filed a Motion for Reinvestigation[13]which the trial court
granted. The reinvestigation conducted gave way to a finding of conspiracy
among the accused and this resulted to the filing of a single Amended
Information[14] under Criminal Case No. 91-1592 and to the withdrawal of
the other Informations.[15] The Amended Information reads:
That on or about September 6, 1991 in Pasay City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did, then and there,
willfully, unlawfully and feloniously carry and transport into the country
without lawful authority, 31.112 kilograms, more or less,
of METHAMPHETAMINE HYDROCHLORIDE, also popularly known as SHABU,
a regulated drug.
CONTRARY TO LAW.[16]
12

[17]
After pleading not guilty to the crime charged, all the accused testified
almost identically, invoking denial as their defense. They claimed that they
have no knowledge about the transportation of illegal substance (shabu)
taken from their traveling bags which were provided by the travel agency.
Ruling of the Regional Trial Court
[18]
On April 6, 1995, the RTC rendered a Decision finding all the accused
guilty of violating Section 15, Article III of R.A. No. 6425, as amended, the
decretal portion of which reads:
WHEREFORE, all the foregoing considered, the Court finds the accused LAW
KA WANG, CHAN CHIT YUE, HO WAI PANG, WU HING SUM, TIN SUN MAO,
AND KIN SAN HO (HO KIN SAN) GUILTY of Conspiracy in violating Section 15,
Article III, Republic Act No. 6425, as amended for having conspired to
transport into the Philippines 31.112 kilograms of methamp[h]etamine
hydrochloride, locally known as Shabu, and they are hereby sentenced to
suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION
PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30)
THOUSAND PESOS (P30,000.00) each as FINE, the penalty of reclusion
perpetua is being imposed pursuant to Republic Act No. 7659 considering its
applicability to the accused though retroactively for having a less stricter
penalty than that of life imprisonment provided in Republic Act No. 6425.
The fine of P30,000.00 for each accused is imposed pursuant to R.A. No.
6425 it being more favorable to the accused [than] that provided in R.A. No.
7659 WITH IMMEDIATE DEPORTATION AFTER SERVICE OF SENTENCE. The
penalty of death cannot be imposed since the offense was committed prior
to the effectivity of R.A. No. 7659.
Let an alias warrant of arrest be issued against accused WONG KOK WAH @
SONNY WONG, CHAN TAK PIU, HO WAI LING AND INOCENCIA CHENG.
SO ORDERED.[19]
From this judgment, all the accused appealed to this Court where the case
records were forwarded to per Order of the RTC dated May 10,
1995.[20] Later, all the accused except for petitioner, filed on separate dates
their respective withdrawal of appeal.[21]This Court, after being satisfied that
the withdrawing appellants were fully aware of the consequences of their
action, granted the withdrawal of their respective appeals through a
Resolution dated June 18, 1997.[22] Per Entry of Judgment, [23] said
Resolution became final and executory on July 7, 1997. Consequently,
petitioner was the only one left to pursue his appeal.
Petitioner filed his Brief[24] on April 6, 1998 while the brief[25] for the
respondent People of the Philippines was filed on August 27, 1998 through
the Office of the Solicitor General (OSG). Per Resolution[26] dated August 30,
2004, this Court referred the appeal to the CA for proper disposition and
determination pursuant to this Courts ruling in People v. Mateo.[27]
Ruling of the Court of Appeals
On June 16, 2006, the CA denied the appeal and affirmed the Decision of
the RTC. While conceding that petitioners constitutional right to counsel
during the custodial investigation was indeed violated, it nevertheless went
on to hold that there were other evidence sufficient to warrant his
conviction. The CA also rebuked petitioners claim that he was deprived of
his constitutional and statutory right to confront the witnesses against
him.The CA gave credence to the testimonies of the prosecution witnesses
and quoted with favor the trial courts ratiocination regarding the existence
of conspiracy among the accused.
Undeterred, petitioner filed a Motion for Reconsideration[28] which the CA
denied in its Resolution[29] dated January 16, 2007.
Hence, this petition for review on certiorari anchored on the following
grounds:
I
WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS
CONSTITUTIONAL AND STATUTORY RIGHTS UNDER CUSTODIAL
INVESTIGATION BOTH BY THE CUSTOMS OFFICIALS AND BY THE NBI
INVESTIGATORS, THE HONORABLE COURT OF APPEALS ERRED IN NOT
EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION.
II
13
THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT
PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO CONFRONT
THE WITNESSES AGAINST HIM.
III
THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
PROSECUTIONS EVIDENCE FAILED TO ESTABLISH THE EXISTENCE OF A
CONSPIRACY.
IV
THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
PROSECUTION FAILED TO PRESENT PROOF BEYOND REASONABLE DOUBT AS
TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO
PETITIONER BY THE CONSTITUTION.[30]
OUR RULING
The petition lacks merit.
Section 12, Article III of the Constitution prohibits as evidence only
confessions and admissions of the accused as against himself.
Anent the error first assigned, petitioner takes issue on the fact that he was
not assisted by a competent and independent lawyer during the custodial
investigation. He claimed that he was not duly informed of his rights to
remain silent and to have competent counsel of his choice. Hence,
petitioner faults the CA in not excluding evidence taken during such
investigation.
While there is no dispute that petitioner was subjected to all the rituals of a
custodial questioning by the customs authorities and the NBI in violation of
his constitutional right under Section 12[31] of Article III of the Constitution,
we must not, however, lose sight of the fact that what said constitutional
provision prohibits as evidence are only confessions and admissions of the
accused as against himself. Thus, in Aquino v. Paiste,[32] the Court
categorically ruled that the infractions of the so-called Miranda rights
render inadmissible only the extrajudicial confession or admission made
during custodial investigation. The admissibility of other evidence, provided
they are relevant to the issue and [are] not otherwise excluded by law or
rules, [are] not affected even if obtained or taken in the course of custodial
investigation.
In the case at bench, petitioner did not make any confession or admission
during his custodial investigation. The prosecution did not present any
extrajudicial confession extracted from him as evidence of his
guilt. Moreover, no statement was taken from petitioner during his
detention and subsequently used in evidence against him. Verily, in
determining the guilt of the petitioner and his co-accused, the trial court
based its Decision on the testimonies of the prosecution witnesses and on
the existence of the confiscated shabu. As the Court held in People v.
Buluran,[33] [a]ny allegation of violation of rights during custodial
investigation is relevant and material only to cases in which an extrajudicial
admission or confession extracted from the accused becomes the basis of
their conviction. Hence, petitioners claim that the trial court erred in not
excluding evidence taken during the custodial investigation deserves scant
consideration.
Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen
Ming[34] to exculpate himself from the crime charged. Though there are
semblance in the facts, the case of Ming is not exactly on all fours with the
present case. The disparity is clear from the evidence adduced upon which
the trial courts in each case relied on in rendering their respective
decisions. Apparently in Ming, the trial court, in convicting the accused,
relied heavily on the signatures which they affixed on the boxes of Alpen
Cereals and on the plastic bags. The Court construed the accuseds act of
affixing their signatures thereon as a tacit admission of the crime charged.
And, since the accused were not informed of their Miranda rights when they
affixed their signatures, the admission was declared inadmissible evidence
for having been obtained in violation of their constitutional rights. In ruling
against the accused, the trial court also gave credence to the sole testimony
of the customs examiner whom it presumed to have performed his duties in
14
regular manner.However, in reversing the judgment of conviction, the Court
noted that said examiners testimony was not corroborated by other
prosecution witnesses.
On the other hand, petitioners conviction in the present case was on the
strength of his having been caught in flagrante
delicto transporting shabu into the country and not on the basis of any
confession or admission. Moreover, the testimony of Cinco was found to be
direct, positive and credible by the trial court, hence it need not be
corroborated. Cinco witnessed the entire incident thus providing direct
evidence as eyewitness to the very act of the commission of the crime. As
the Court held in People v Dela Cruz,[35] [n]o rule exists which requires a
testimony to be corroborated to be adjudged credible. x x x Thus, it is not at
all uncommon to reach a conclusion of guilt on the basis of the testimony of
a single witness despite the lack of corroboration, where such testimony is
found positive and credible by the trial court. In such a case, the lone
testimony is sufficient to produce a conviction.
Indeed, a ruling in one case cannot simply be bodily lifted and applied to
another case when there are stark differences between the two cases. Cases
must be decided based on their own unique facts and applicable law and
jurisprudence.
Petitioner was not denied of his right to confrontation.
Turning now to the second assigned error, petitioner invokes the pertinent
provision of Section 14(2) of Article III of the 1987 Philippine Constitution
providing for the right to confrontation, viz:
Section 14. x x x
(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face
to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is
unjustifiable.
Petitioner asserts that he was deprived of his right to know and understand
what the witnesses testified to. According to him, only a full understanding
of what the witnesses would testify to would enable an accused to
comprehend the evidence being offered against him and to refute it by
cross-examination or by his own countervailing evidence.
In refutation, the OSG countered that petitioner was given the opportunity
to confront his accusers and/or the witnesses of the prosecution when his
counsel cross-examined them.It is petitioners call to hire an interpreter to
understand the proceedings before him and if he could not do so, he should
have manifested it before the court. At any rate, the OSG contends that
petitioner was nevertheless able to cross-examine the prosecution
witnesses and that such examination suffices as compliance with petitioners
right to confront the witnesses against him.
We agree with the OSG.
As borne out by the records, petitioner did not register any objection to the
presentation of the prosecutions evidence particularly on the testimony of
Cinco despite the absence of an interpreter. Moreover, it has not been
shown that the lack of an interpreter greatly prejudiced him. Still and all, the
important thing is that petitioner, through counsel, was able to fully cross-
examine Cinco and the other witnesses and test their credibility. The right to
confrontation is essentially a guarantee that a defendant may cross-examine
the witnesses of the prosecution. In People v. Libo-on,[36] the Court held:
The right to confrontation is one of the fundamental rights guaranteed by
the Constitution to the person facing criminal prosecution who should
know, in fairness, who his accusers are and must be given a chance to cross-
examine them on their charges. The chief purpose of the right of
confrontation is to secure the opportunity for cross-examination, so that if
the opportunity for cross-examination has been secured, the function and
test of confrontation has also been accomplished, the confrontation being
merely the dramatic preliminary to cross-examination.
15

Under the circumstances obtaining, petitioners constitutional right to
confront the witnesses against him was not impaired.
Conspiracy among the accused was duly established.
Respecting the third assigned error, we uphold the trial courts finding of
conspiracy which was quoted by the appellate court in its assailed Decision,
and which we once again herein reproduce with approval:
On the allegation of conspiracy, the Court finds [no] direct evidence to
conclude conspiracy. However, just like in other cases where conspiracy is
not usually established by direct evidence but by circumstantial evidence,
the Court finds that there are enough circumstantial evidence which if taken
together sufficiently prove conspiracy. First, it cannot be denied that the
accused somehow have known each other prior to their [departure] in Hong
Kong for Manila. Although Law Ka Wang denied having known any of the
accused prior to the incident in NAIA, accused Ho Wai Pang identified him as
the one who assisted him in the supposed tour in the Philippines to the
extent of directly dealing with the travel agency and [that] Law Ka Wang
was the one who received the personal things of Ho Wai Pang allegedly to
be place[d] in a bag provided for by the travel agency. Accused Wu Hing
Sum has been known to accused Ho Kin San for about two to three years as
they used to work as cooks in a restaurant in Hong Kong. Accused Ho Wai
Ling, who is still at large, is know[n] to accused Chan Chit Yue, Wu Hing Sum
and Ho Kin San. These relationships in a way can lead to the presumption
that they have the capability to enter into a conspiracy. Second, all the
illegal substances confiscated from the six accused were contained in
chocolate boxes of similar sizes and almost the same weight all contained in
their luggages. The Court agrees with the finding of the trial prosecutor that
under the given circumstances, the offense charged [c]ould have been
perpetrated only through an elaborate and methodically planned conspiracy
with all the accused assiduously cooperating and mutually helping each
other in order to ensure its success.[37]
We find no cogent reason to reverse such findings.
Conspiracy is [the] common design to commit a felony.[38] [C]onspiracy
which determines criminal culpability need not entail a close personal
association or at least an acquaintance between or among the participants
to a crime.[39] It need not be shown that the parties actually came together
and agreed in express terms to enter into and pursue a common
design.[40] The assent of the minds may be and, from the secrecy of the
crime, usually inferred from proof of facts and circumstances which, taken
together, indicate that they are parts of some complete whole as we ruled
in People v. Mateo, Jr.[41] Here, it can be deduced from petitioner and his co-
accuseds collective conduct, viewed in its totality, that there was a common
design, concerted action and concurrence of sentiments in bringing about
the crime committed.
Petitioners guilt was proved beyond reasonable doubt.
Finally, petitioner asserts that the prosecution failed to prove his guilt
beyond reasonable doubt. He makes capital on the contention that no
chocolate boxes were found in his traveling bag when it was examined at
the ICU. He claimed that it was his co-accused Sonny Wong who took charge
in ascribing upon him the possession of the two chocolate boxes.
Petitioners contentions fail to persuade.
True, when principal prosecution witness Cinco first testified on June 3,
1992, she declared that she did not see any chocolate boxes but only
personal effects in petitioners bag.[42] Nonetheless, she clarified in her
succeeding testimony that she recalls taking the two chocolate boxes from
petitioners bag when they were still at the counter. This sufficiently
explained why Cinco did not find any chocolate boxes from petitioners bag
when they were at the ICU.[43] To us, this slight clash in Cincos statements
neither dilute her credibility nor the veracity of her testimony.
The trial courts words on this matter when it resolved petitioners Demurrer
to Evidence in its Order[44] of February 16, 1993 is quite enlightening. Thus
In claiming that the evidences [sic] presented by the prosecution is
insufficient to command conviction, the Demurrer went on to say that the
testimony of Hilda Cinco is either conjectural or hearsay and definitely
16
missed its mark in incriminating accused, Ho Wai Pang, because she even
testified that she found nothing inside the hand-carried luggage of Ho Wai
Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was
going on at the Intensive Counting Unit (ICU). However, the same Hilda
Cinco later on testified that from the express lane in going to the ICU, after
the discovery of shabu, she was already carrying with her four (4) chocolate
boxes, two of [which] taken from the bag of Tin Sun Mau and the other two
retrieved from the luggage of herein movant, Ho Wai Pang. Categorically,
Cinco admitted it was the reason that at the ICU, Ho Wai Pangs bag was
already empty (pp. 53-54, TSN, June 3, 1992), but she nonetheless
recognized the bag and could recall the owner thereof, pointing to Ho Wai
Pang. Such testimony is not hearsay evidence. They are facts from the
personal perception of the witness and out of her personal knowledge.
Neither is it conjectural.[45]
Jurisprudence teaches that in assessing the credibility of a witness, his
testimony must be considered in its entirety instead of in truncated
parts. The technique in deciphering a testimony is not to consider only its
isolated parts and anchor a conclusion on the basis of said parts. In
ascertaining the facts established by a witness, everything stated by him on
direct, cross and redirect examinations must be calibrated and
considered.[46] Also, where there is nothing in the records which would show
a motive or reason on the part of the witnesses to falsely implicate the
accused, identification should be given full weight.Here, petitioner
presented no evidence or anything to indicate that the principal witness for
the prosecution, Cinco, was moved by any improper motive, hence her
testimony is entitled to full faith and credit.
Verily, the evidence adduced against petitioner is so overwhelming that this
Court is convinced that his guilt has been established beyond reasonable
doubt. Nothing else can speak so eloquently of his culpability than the
unassailable fact that he was caught red-handed in the very act of
transporting, along with his co-accused, shabu into the country.In stark
contrast, the evidence for the defense consists mainly of denials.
Petitioner tried to show that he was not aware of the shabu inside his
luggage considering that his bag was provided by the travel
agency. However, it bears stressing that the act of transporting a prohibited
drug is a malum prohibitum because it is punished as an offense under a
special law. As such, the mere commission of the act is what constitutes the
offense punished and same suffices to validly charge and convict an
individual caught committing the act so punished regardless of criminal
intent. Moreover, beyond his bare denials, petitioner has not presented any
plausible proof to successfully rebut the evidence for the prosecution. It is
basic that affirmative testimony of persons who are eyewitnesses of the
events or facts asserted easily overrides negative testimony.[47]
All told, we are convinced that the courts below committed no error in
adjudging petitioner guilty of transporting methamphetamine hydrochloride
or shabu into the country in violation of Section 15, Article III of R.A. No.
6425, as amended.
Penalty
As to the penalties imposed by the trial court and as affirmed by the
appellate court, we find the same in accord with law and jurisprudence. It
should be recalled that at the time of the commission of the crime on
September 6, 1991, Section 15 of R.A. No. 6425 was already amended by
Presidential Decree No. 1683.[48] The decree provided that for violation of
said Section 15, the penalty of life imprisonment to death and a fine ranging
from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however,
R.A. No. 7659[49] further introduced new amendments to Section 15, Article
III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new
amendments, the penalty prescribed in Section 15 was changed from life
imprisonment to death and a fine ranging from P20,000.00 to P30,000.00
to reclusion perpetua to death and a fine ranging from P500,000.00 to P10
million. On the other hand, Section 17 of R.A. No. 7659 amended Section 20,
Article IV of R.A. No. 6425 in that the new penalty provided by the
amendatory law shall be applied depending on the quantity of the
dangerous drugs involved.
The trial court, in this case, imposed on petitioner the penalty
of reclusion perpetua under R.A. No. 7659 rather than life imprisonment
ratiocinating that R.A. No. 7659 could be given retroactive application, it
being more favorable to the petitioner in view of its having a less stricter
punishment.
17
We agree. In People v. Doroja,[50] we held:
In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a)
that the amendatory law, being more lenient and favorable to the accused
than the original provisions of the Dangerous Drugs Act, should be accorded
retroactive application, x x x.
And, since reclusion perpetua is a lighter penalty than life imprisonment,
and considering the rule that criminal statutes with a favorable effect to the
accused, have, as to him, a retroactive effect,[51] the penalty imposed by the
trial court upon petitioner is proper.Consequently, the Court sustains the
penalty of imprisonment, which is reclusion perpetua, as well as the amount
of fine imposed by the trial court upon petitioner, the same being more
favorable to him.
WHEREFORE premises considered, the petition is DENIED and the
assailed June 16, 2006 Decision and January 16, 2007 Resolution of the
Court of Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED.
SO ORDERED.
ART 4
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34665 August 28, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
DONATO BINDOY, defendant-appellant.
Florentino Saguin for appellant.
Attorney-General Jaranilla for appellee.
VILLAMOR, J.:
The appellant was sentenced by the Court of First Instance of Occidental
Misamis to the penalty of twelve years and one day of reclusion temporal,
with the accessories of law, to indemnify the heirs of the deceased in the
amount of P1,000, and to pay the costs. The crime charged against the
accused is homicide, according to the following information:
That on or about the 6th of May, 1930, in the barrio of Calunod,
municipality of Baliangao, Province of Occidental Misamis, the accused
Donato Bindoy willfully, unlawfully, and feloniously attacked and with his
bolo wounded Emigdio Omamdam, inflicting upon the latter a serious
wound in the chest which caused his instant death, in violation of article 404
of the Penal Code.
The accused appealed from the judgment of the trial court, and his counsel
in this instance contends that the court erred in finding him guilty beyond a
reasonable doubt, and in convicting him of the crime of homicide.
The record shows that in the afternoon of May 6, 1930, a disturbance arose
in a tuba wineshop in the barrio market of Calunod, municipality of
Baliangao, Province of Occidental Misamis, started by some of
the tuba drinkers. There were Faustino Pacas (alias Agaton), and his wife
called Tibay. One Donato Bindoy, who was also there, offered some tuba to
Pacas' wife; and as she refused to drink having already done so, Bindoy
threatened to injure her if she did not accept. There ensued an interchange
of words between Tibay and Bindoy, and Pacas stepped in to defend his
wife, attempting to take away from Bindoy the bolo he carried. This
occasioned a disturbance which attracted the attention of Emigdio
Omamdam, who, with his family, lived near the market. Emigdio left his
house to see what was happening, while Bindoy and Pacas were struggling
for the bolo. In the course of this struggle, Bindoy succeeded in disengaging
18
himself from Pacas, wrenching the bolo from the latter's hand towards the
left behind the accused, with such violence that the point of the bolo
reached Emigdio Omamdam's chest, who was then behind Bindoy.
There is no evidence that Emigdio took part in the fight between Bindoy and
Pacas. Neither is there any indication that the accused was aware of
Emigdio Omamdam's presence in the place, for, according to the testimony
of the witnesses, the latter passed behind the combatants when he left his
house to satisfy his curiosity. There was no disagreement or ill feeling
between Bindoy and Omamdam, on the contrary, it appears they were
nephew and uncle, respectively, and were on good terms with each other.
Bindoy did not try to wound Pacas, and instead of wounding him, he hit
Omamdam; he was only defending his possession of the bolo, which Pacas
was trying to wrench away from him, and his conduct was perfectly lawful.
The wound which Omamdam received in the chest, judging by the
description given by the sanitary inspector who attended him as he lay
dying, tallies with the size of the point of Bindoy's bolo.
There is no doubt that the latter caused the wound which produced Emigdio
Omamdam's death, but the defendant alleges that it was caused
accidentally and without malicious intent.
Pacas and the widow of the deceased, Carmen Angot, testified having seen
the accused stab Omamdam with his bolo. Such testimony is not
incompatible with that of the accused, to the effect that he wounded
Omamdam by accident. The widow testified that she knew of her husband's
wound being caused by Bindoy from his statement to her before his death.
The testimony of the witnesses for the prosecution tends to show that the
accused stabbed Omamdam in the chest with his bolo on that occasion. The
defendant, indeed, in his effort to free himself of Pacas, who was
endeavoring to wrench his bolo from him, hit Omamdam in the chest; but,
as we have stated, there is no evidence to show that he did so deliberately
and with the intention of committing a crime. If, in his struggle with Pacas,
the defendant had attempted to wound his opponent, and instead of doing
so, had wounded Omamdam, he would have had to answer for his act, since
whoever willfully commits a felony or a misdemeanor incurs criminal
liability, although the wrongful act done be different from that which he
intended. (Art. 1 of the Penal Code.) But, as we have said, this is not the
case.
The witness for the defense, Gaudencio Cenas, corroborates the defendant
to the effect that Pacas and Bindoy were actually struggling for the
possession of the bolo, and that when the latter let go, the former had
pulled so violently that it flew towards his left side, at the very moment
when Emigdio Omamdam came up, who was therefore hit in the chest,
without Donato's seeing him, because Emigdio had passed behind him. The
same witness adds that he went to see Omamdam at his home later, and
asked him about his wound when he replied: "I think I shall die of this
wound." And then continued: "Please look after my wife when I die: See
that she doesn't starve," adding further: "This wound was an accident.
Donato did not aim at me, nor I at him: It was a mishap." The testimony of
this witness was not contradicted by any rebuttal evidence adduced by the
fiscal.
We have searched the record in vain for the motive of this kind, which, had
it existed, would have greatly facilitated the solution of this case. And we
deem it well to repeat what this court said in United States vs. Carlos (15
Phil., 47), to wit:
The attention of prosecuting officers, and especially of provincial fiscals,
directed to the importance of definitely ascertaining and proving, when
possible, the motives which actuated the commission of a crime under
investigation.
In many criminal cases one of the most important aids in completing the
proof of the commission of the crime by the accused is the introduction of
evidence disclosing the motives which tempted the mind of the guilty
person to indulge the criminal act.
In view of the evidence before us, we are of opinion and so hold, that the
appellant is entitled to acquittal according to article 8, No. 8, Penal Code.
Wherefore, the judgment appealed from is reversed, and the accused
Donato Bindoy is hereby acquitted with costs de oficio. So ordered.
19
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 177218 October 3, 2011
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
NOEL T. SALES, Appellant.
DECISION
DEL CASTILLO, J.:
A father ought to discipline his children for committing a misdeed. However,
he may not employ sadistic beatings and inflict fatal injuries under the guise
of disciplining them.
This appeal seeks the reversal of the December 4, 2006 Decision1 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01627 that affirmed the August
3, 2005 Joint Decision2 of the Regional Trial Court (RTC), Branch 63 of
Calabanga, Camarines Sur in Criminal Case Nos. RTC’03-782 and RTC’03-789,
convicting appellant Noel T. Sales (appellant) of the crimes of parricide and
slight physical injuries, respectively. The Information3 for parricide
contained the following allegations:
That on or about the 20th day of September, 2002, at around or past 8:00
o’clock in the evening at Brgy. San Vicente, Tinambac, Camarines Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused with evident premeditation and [in] a fit of anger, did then
and there willfully, unlawfully and feloniously hit [several] times, the
different parts of the body of his legitimate eldest son, Noemar Sales, a 9-
year old minor, with a [piece of] wood, measuring more or less one meter in
length and one [and] a half inches in diameter, [thereby] inflicting upon the
latter mortal wounds, which cause[d] the death of the said victim, to the
damage and prejudice of the latter’s heirs in such amount as may be proven
in court.
ACTS CONTRARY TO LAW.4
On the other hand, the Information5 in Criminal Case No. RTC’03-789 alleges
that appellant inflicted slight physical injuries in the following manner:
That on or about the 20th day of September, 2002, at around or past 8:00
o’clock in the evening, at Brgy. San Vicente, Tinambac, Camarines Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named [accused] assault[ed] and hit with a piece of wood, one Noel Sales,
Jr., an 8-year old minor, his second legitimate son, thereby inflicting upon
him physical injuries which have required medical attendance for a period of
five (5) days to the damage and prejudice of the victim’s heirs in such
amount as may be proven in court.
ACTS CONTRARY TO LAW.6
When arraigned on April 11, 2003 and July 1, 2003, appellant pleaded not
guilty for the charges of parricide7 and slight physical injuries8 respectively.
The cases were then consolidated upon manifestation of the prosecution
which was not objected to by the defense.9 During the pre-trial conference,
the parties agreed to stipulate that appellant is the father of the victims,
Noemar Sales (Noemar) and Noel Sales, Jr. (Junior); that at the time of the
incident, appellant’s family was living in the conjugal home located in
Barangay San Vicente, Tinambac, Camarines Sur; and, that appellant
voluntarily surrendered to the police.10
Thereafter, trial ensued.
The Version of the Prosecution
On September 19, 2002, brothers Noemar and Junior, then nine and eight
years old, respectively, left their home to attend the fluvial procession of
Our Lady of Peñafrancia without the permission of their parents. They did
not return home that night. When their mother, Maria Litan Sales (Maria),
looked for them the next day, she found them in the nearby Barangay of
Magsaysay. Afraid of their father’s rage, Noemar and Junior initially refused
to return home but their mother prevailed upon them. When the two kids
reached home at around 8 o’clock in the evening of September 20, 2002, a
furious appellant confronted them. Appellant then whipped them with a
stick which was later broken so that he brought his kids outside their house.
With Noemar’s and Junior’s hands and feet tied to a coconut tree, appellant
continued beating them with a thick piece of wood. During the beating
Maria stayed inside the house and did not do anything as she feared for her
life.
When the beating finally stopped, the three walked back to the house with
appellant assisting Noemar as the latter was staggering, while Junior
fearfully followed. Maria noticed a crack in Noemar’s head and injuries in his
legs. She also saw injuries in the right portion of the head, the left cheek,
and legs of Junior. Shortly thereafter, Noemar collapsed and lost
consciousness. Maria tried to revive him and when Noemar remained
motionless despite her efforts, she told appellant that their son was already
dead. However, appellant refused to believe her. Maria then told appellant
to call a quack doctor. He left and returned with one, who told them that
they have to bring Noemar to a hospital. Appellant thus proceeded to take
20
the unconscious Noemar to the junction and waited for a vehicle to take
them to a hospital. As there was no vehicle and because another quack
doctor they met at the junction told them that Noemar is already dead,
appellant brought his son back to their house.
Noemar’s wake lasted only for a night and he was immediately buried the
following day. His body was never examined by a doctor.
The Version of the Defense
Prior to the incident, Noemar and Junior had already left their residence on
three separate occasions without the permission of their parents. Each time,
appellant merely scolded them and told them not to repeat the misdeed
since something untoward might happen to them. During those times,
Noemar and Junior were never physically harmed by their father.
However, Noemar and Junior again left their home without their parents’
permission on September 16, 2002 and failed to return for several days.
Worse, appellant received information that his sons stole a pedicab. As they
are broke, appellant had to borrow money so that his wife could search for
Noemar and Junior. When his sons finally arrived home at 8 o’clock in the
evening of September 20, 2002, appellant scolded and hit them with a piece
of wood as thick as his index finger. He hit Noemar and Junior
simultaneously since they were side by side. After whipping his sons in their
buttocks three times, he noticed that Noemar was chilling and frothing.
When Noemar lost consciousness, appellant decided to bring him to a
hospital in Naga City by waiting for a vehicle at the crossroad which was
seven kilometers away from their house.
Appellant held Noemar while on their way to the crossroad and observed
his difficulty in breathing. The pupils of Noemar’s eyes were also moving up
and down. Appellant heard him say that he wanted to sleep and saw him
pointing to his chest in pain. However, they waited in vain since a vehicle
never came. It was then that Noemar died. Appellant thus decided to just
bring Noemar back to their house.
Appellant denied that his son died from his beating since no parent could kill
his or her child. He claimed that Noemar died as a result of difficulty in
breathing. In fact, he never complained of the whipping done to him.
Besides, appellant recalled that Noemar was brought to a hospital more
than a year before September 2002 and diagnosed with having a weak
heart.
On the other hand, Maria testified that Noemar suffered from epilepsy.
Whenever he suffers from epileptic seizures, Noemar froths and passes out.
But he would regain consciousness after 15 minutes. His seizures normally
occur whenever he gets hungry or when scolded.
The death of Noemar was reported to the police by the barangay
captain.11 Thereafter, appellant surrendered voluntarily.12
Ruling of the Regional Trial Court
In a Joint Decision,13 the trial court held that the evidence presented by the
prosecution was sufficient to prove that appellant was guilty of committing
the crimes of parricide and slight physical injuries in the manner described
in the Informations. In the crime of parricide, the trial court did not consider
the aggravating circumstance of evident premeditation against appellant
since there is no proof that he planned to kill Noemar. But the trial court
appreciated in his favor the mitigating circumstances of voluntary surrender
and lack of intent to commit so grave a wrong. The dispositive portion of
said Joint Decision reads:
WHEREFORE, in view of the foregoing, the prosecution having proven the
guilt of Noel Sales, beyond reasonable doubt, he is found guilty of parricide
in Crim. Case No. RTC’03-782 and sentenced to suffer the penalty of
reclusion perpetua. He is likewise ordered to pay the heirs of Noemar Sales,
the amount of ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages;
₱25,000,00 as exemplary damages and to pay the costs.
Furthermore, accused Noel Sales is also found guilty beyond reasonable
doubt of the crime of slight physical injuries in Crim. Case No. RTC’03-789
and sentenced to suffer the penalty of twenty (20) days of Arresto Menor in
its medium period.
Accused Noel Sales is likewise meted the accessory penalties as provided
under the Revised Penal Code. Considering that herein accused has
undergone preventive imprisonment, he shall be credited in the service of
his sentence with the time he has undergone preventive imprisonment in
accordance with and subject to the conditions provided for in Article 29 of
the Revised Penal Code.
SO ORDERED.14
Appellant filed a Notice of Appeal15 which was given due course in an
Order16 dated September 21, 2005.
Ruling of the Court of Appeals
However, the appellate court denied the appeal and affirmed the ruling of
the trial court. The dispositive portion of its Decision17 reads as follows:
WHEREFORE, premises considered, the appeal is DENIED. The assailed
decision dated August 3, 2005 in Criminal Case Nos. RTC’03-782 and RTC’03-
789 for Parricide and Slight Physical Injuries, respectively, is AFFIRMED.
21
Pursuant to Section 13(c), Rule 124 of the Revised Rules of Criminal
Procedure, appellant may appeal this case to the Supreme Court via a Notice
of Appeal filed before this Court.
SO ORDERED.18
Issues
Hence, appellant is now before this Court with the following two-fold issues:
I stopped the beating. Had not Noemar lost consciousness, appellant would
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED.
II
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT TO THE
TESTIMONIES OF THE DEFENSE WITNESSES.19
Our Ruling
The appeal is without merit.
The Charge of Parricide
Appellant admits beating his sons on September 20, 2002 as a disciplinary
measure, but denies battering Noemar to death. He believes that no father
could kill his own son. According to him, Noemar had a weak heart that
resulted in attacks consisting of loss of consciousness and froth in his
mouth. He claims that Noemar was conscious as they traveled to the
junction where they would take a vehicle in going to a hospital. However,
Noemar had difficulty in breathing and complained of chest pain. He
contends that it was at this moment that Noemar died, not during his
whipping. To substantiate his claim, appellant presented his wife, Maria,
who testified that Noemar indeed suffered seizures, but this was due to
epilepsy.
The contentions of appellant fail to persuade. The imposition of parental
discipline on children of tender years must always be with the view of
correcting their erroneous behavior. A parent or guardian must exercise
restraint and caution in administering the proper punishment. They must
not exceed the parameters of their parental duty to discipline their minor
children. It is incumbent upon them to remain rational and refrain from
being motivated by anger in enforcing the intended punishment. A
deviation will undoubtedly result in sadism.
Prior to whipping his sons, appellant was already furious with them because
they left the family dwelling without permission and that was already
preceded by three other similar incidents. This was further aggravated by a
report that his sons stole a pedicab thereby putting him in disgrace.
Moreover, they have no money so much so that he still had to borrow so
that his wife could look for the children and bring them home. From these,
it is therefore clear that appellant was motivated not by an honest desire to
discipline the children for their misdeeds but by an evil intent of venting his
anger. This can reasonably be concluded from the injuries of Noemar in his
head, face and legs. It was only when Noemar’s body slipped from the
coconut tree to which he was tied and lost consciousness that appellant
most likely not have ceased from his sadistic act. His subsequent attempt to
seek medical attention for Noemar as an act of repentance was
nevertheless too late to save the child’s life. It bears stressing that a decent
and responsible parent would never subject a minor child to sadistic
punishment in the guise of discipline.
Appellant attempts to evade criminal culpability by arguing that he merely
intended to discipline Noemar and not to kill him. However, the relevant
portion of Article 4 of the Revised Penal Code states:
Art. 4. Criminal liability. – Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
xxxx
In order that a person may be criminally liable for a felony different from
that which he intended to commit, it is indispensible (a) that a felony was
committed and (b) that the wrong done to the aggrieved person be the
direct consequence of the crime committed by the perpetrator.20 Here,
there is no doubt appellant in beating his son Noemar and inflicting upon
him physical injuries, committed a felony. As a direct consequence of the
beating suffered by the child, he expired. Appellant’s criminal liability for the
death of his son, Noemar, is thus clear.
Appellant’s claim that it was Noemar’s heart ailment that caused his death
deserves no merit. This declaration is self-serving and uncorroborated since
it is not substantiated by evidence. While Dr. Salvador Betito, a Municipal
Health Officer of Tinambac, Camarines Sur issued a death certificate
indicating that Noemar died due to cardio-pulmonary arrest, the same is not
sufficient to prove that his death was due mainly to his poor health. It is
worth emphasizing that Noemar’s cadaver was never examined. Also, even
if appellant presented his wife, Maria, to lend credence to his contention,
the latter’s testimony did not help as same was even in conflict with his
testimony. Appellant testified that Noemar suffered from a weak heart
which resulted in his death while Maria declared that Noemar was suffering
22
from epilepsy. Interestingly, Maria’s testimony was also unsubstantiated by
evidence.
Moreover, as will be discussed below, all the elements of the crime of
parricide are present in this case.
All the Elements of Parricide are present in the case at bench.
We find no error in the ruling of the trial court, as affirmed by the appellate
court, that appellant committed the crime of parricide.
Article 246 of the Revised Penal Code defines parricide as follows:
Art. 246. Parricide. – Any person who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants, or descendants,
or his spouse, shall be guilty of parricide and shall be punished by the
penalty of reclusion perpetua to death.
"Parricide is committed when: (1) a person is killed; (2) the deceased is killed
by the accused; (3) the deceased is the father, mother, or child, whether
legitimate or illegitimate, or a legitimate other ascendant or other
descendant, or the legitimate spouse of accused."21
In the case at bench, there is overwhelming evidence to prove the first
element, that is, a person was killed. Maria testified that her son Noemar
did not regain consciousness after the severe beating he suffered from the
hands of his father. Thereafter, a quack doctor declared Noemar dead.
Afterwards, as testified to by Maria, they held a wake for Noemar the next
day and then buried him the day after. Noemar’s Death Certificate22 was
also presented in evidence.
There is likewise no doubt as to the existence of the second element that
the appellant killed the deceased. Same is sufficiently established by the
positive testimonies of Maria and Junior. Maria testified that on September
20, 2002, Noemar and his younger brother, Junior, were whipped by
appellant, their father, inside their house. The whipping continued even
outside the house but this time, the brothers were tied side by side to a
coconut tree while appellant delivered the lashes indiscriminately. For his
part, Junior testified that Noemar, while tied to a tree, was beaten by their
father in the head. Because the savagery of the attack was too much for
Noemar’s frail body to endure, he lost consciousness and died from his
injuries immediately after the incident.
As to the third element, appellant himself admitted that the deceased is his
child. While Noemar’s birth certificate was not presented, oral evidence of
filial relationship may be considered.23 As earlier stated, appellant stipulated
to the fact that he is the father of Noemar during the pre-trial conference
and likewise made the same declaration while under oath.24 Maria also
testified that Noemar and Junior are her sons with appellant, her husband.
These testimonies are sufficient to establish the relationship between
appellant and Noemar.
Clearly, all the elements of the crime of parricide are obtaining in this case.
There is Mitigating Circumstance of Voluntary Surrender but not Lack of
Intention to Commit so Grave a Wrong
The trial court correctly appreciated the mitigating circumstance of
voluntary surrender in favor of appellant since the evidence shows that he
went to the police station a day after the barangay captain reported the
death of Noemar. The presentation by appellant of himself to the police
officer on duty in a spontaneous manner is a manifestation of his intent "to
save the authorities the trouble and expense that may be incurred for his
search and capture"25 which is the essence of voluntary surrender.
However, there was error in appreciating the mitigating circumstance of
lack of intention to commit so grave a wrong. Appellant adopted means to
ensure the success of the savage battering of his sons. He tied their wrists to
a coconut tree to prevent their escape while they were battered with a stick
to inflict as much pain as possible. Noemar suffered injuries in his face, head
and legs that immediately caused his death. "The mitigating circumstance of
lack of intent to commit so grave a wrong as that actually perpetrated
cannot be appreciated where the acts employed by the accused were
reasonably sufficient to produce and did actually produce the death of the
victim."26
The Award of Damages and Penalty for Parricide
We find proper the trial court’s award to the heirs of Noemar of the sums of
₱50,000.00 as civil indemnity, and ₱50,000.00 as moral damages. However,
the award of exemplary damages of ₱25,000.00 should be increased to
₱30,000.00 in accordance with prevailing jurisprudence.27 "In addition, and
in conformity with current policy, we also impose on all the monetary
awards for damages an interest at the legal rate of 6% from the date of
finality of this Decision until fully paid."28
As regards the penalty, parricide is punishable by reclusion perpetua to
death. The trial court imposed the penalty of reclusion perpetua when it
considered the presence of the mitigating circumstances of voluntary
surrender and lack of intent to commit so grave a wrong. However, even if
we earlier ruled that the trial court erred in considering the mitigating
circumstance of lack of intent to commit so grave a wrong, we maintain the
penalty imposed. This is because the exclusion of said mitigating
circumstance does not result to a different penalty since the presence of
23
only one mitigating circumstance, which is, voluntary surrender, with no
aggravating circumstance, is sufficient for the imposition of reclusion
perpetua as the proper prison term. Article 63 of the Revised Penal Code
provides in part as follows:
Art. 63. Rules for the application of indivisible penalties. - x x x
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the application
thereof:
xxxx
3. When the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser penalty
shall be applied.
xxxx
The crime of parricide is punishable by the indivisible penalties of reclusion
perpetua to death. With one mitigating circumstance, which is voluntary
surrender, and no aggravating circumstance, the imposition of the lesser
penalty of reclusion perpetua and not the penalty of death on appellant was
thus proper.29
The Charge of Slight Physical Injuries
The victim himself, Junior testified that he, together with his brother
Noemar, were beaten by their father, herein appellant, while they were tied
to a coconut tree. He recalled to have been hit on his right eye and right leg
and to have been examined by a physician thereafter.30 Maria corroborated
her son’s testimony.31
Junior’s testimony was likewise supported by Dr. Ursolino Primavera, Jr. (Dr.
Primavera) of Tinambac Community Hospital who examined him for physical
injuries. He issued a Medical Certificate for his findings and testified on the
same. His findings were (1) muscular contusions with hematoma on the
right side of Junior’s face just below the eye and on both legs, which could
have been caused by hitting said area with a hard object such as a wooden
stick and, (2) abrasions of brownish color circling both wrist with crust
formation which could have been sustained by the patient due to struggling
while his hands were tied. When asked how long does he think the injuries
would heal, Dr. Primavera answered one to two weeks.32 But if applied with
medication, the injuries would heal in a week.33
We give full faith and credence to the categorical and positive testimony of
Junior that he was beaten by his father and that by reason thereof he
sustained injuries. His testimony deserves credence especially since the
same is corroborated by the testimony of his mother, Maria, and supported
by medical examination. We thus find that the RTC correctly held appellant
guilty of the crime of slight physical injuries.1awphil
Penalty for Slight Physical Injuries
We likewise affirm the penalty imposed by the RTC. Dr. Primavera testified
that the injuries sustained by Junior should heal in one week upon
medication. Hence, the trial court correctly meted upon appellant the
penalty under paragraph 1, Article 266 of the Revised Penal Code which
provides:
ART. 266. Slight Physical Injuries and maltreatment. – The crime of slight
physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries which
shall incapacitate the offended party for labor from one to nine days or shall
require medical attendance during the same period.
xxxx
There being no mitigating or aggravating circumstance present in the
commission of the crime, the penalty shall be in its medium period. The RTC
was thus correct in imposing upon appellant the penalty of twenty (20) days
of arresto menor in its medium period.
WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 01627 that affirmed the Joint Decision of the Regional
Trial Court, Branch 63 of Calabanga, Camarines Sur in Criminal Case Nos.
RTC’03-782 and RTC’03-789, convicting Noel T. Sales of the crimes of
parricide and slight physical injuries is AFFIRMED with MODIFICATIONS that
the award of exemplary damages is increased to ₱30,000.00. In addition, an
interest of 6% is imposed on all monetary awards from date of finality of
this Decision until fully paid.
SO ORDERED.
24
EN BANC
[G.R. No. 32066. March 15, 1930.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. GONA
(Mansaca), Defendant-Appellant.
Jose Ma. Capili, for Appellant.
Attorney-General Jaranilla, for Appellee.
SYLLABUS
1. HOMICIDE; MISTAKE AS TO VICTIM. — As a result of a quarrel, the
defendant endeavored to kill D, but by mistake, killed M. Held, that his
mistake in killing one man instead of another did not relieve him from
criminal responsibility and could not even be considered a mitigating
circumstance.
DECISION
OSTRAND, J.:
The defendant was charged before the Court of First Instance of the
Province of Davao with the crime of homicide, the information reading as
follows:jgc:chanrobles.com.ph
"That on or about October 26, 1928, in the municipal district of Pantukan,
Province of Davao, Philippine Islands, and within the jurisdiction of the
court, the said accused voluntarily, illegally, and criminally and with a bolo
which he then carried, assaulted the Mansaca Mapudul, causing him a
mortal wound on the left side of the neck and that, as a consequence of said
wound, the said Mapudul died."cralaw virtua1aw library
Upon trial the court below found the defendant guilty as charged in the
information and taking into consideration the extenuating circumstance of
non-habitual intoxication, sentenced him to suffer twelve years and one day
of reclusion temporal with the accessory penalties prescribed by law, to
indemnify the heirs of the deceased in the sum of P1,000, and to pay the
costs. From this sentence the defendant appealed.
It appears from the evidence that on the evening of October 26, 1928, a
number of Mansacas celebrated a reunion in the house of the Mansaca
Gabriel. There seems to have been a liberal supply of alcoholic drinks and
some of the men present became intoxicated, with the result that a quarrel
took place between the Mansaca Dunca and the defendant. Dunca and his
son Aguipo eventually left the house and were followed by Mapudul and
one Awad. The defendant left the house about the same time with intention
of assaulting Dunca, but in the darkness of the evening and in the
intoxicated condition of the defendant, he mistook Mapudul for Dunca and
inflicted on him a mortal wound with a bolo.
There can be no doubt that the defendant killed Mapudul and that he is
guilty of the crime charged, but his attorney argues that in view of the fact
that said defendant had no intention to kill the deceased and committed the
crime by mistake, he should have been found guilty of homicide through
negligence under paragraph 1 of article 568 of the Penal Code and not of
the graver crime of intentional homicide. This contention is contrary to
earlier decisions of this court. In the case of United States v. Mendieta (34
Phil., 242), the court said:jgc:chanrobles.com.ph
"Even admitting that the defendant intended to injure Hilario Lauigan
instead of Pedro Acierto, even that, in view of the mortal wound which he
inflicted upon the latter, in no way could be considered as a relief from his
criminal act. That he made a mistake in killing one man instead of another,
when it is proved that he acted maliciously and willfully, cannot relieve him
from criminal responsibility. Neither do we believe that the fact that he
made a mistake in killing the wrong man should be considered as a
mitigating circumstance."cralaw virtua1aw library
The appealed sentence is affirmed with the costs against the defendant. So
ordered.
25
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25459 August 10, 1926
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
RAMON MABUG-AT, defendant-appellant.
Vicente Sotto for appellant.
Attorney-General Jaranilla for appellee.
ROMUALDEZ, J.:
The Court of First Instance of Oriental Negros imposed upon Ramon Mabug-
at the penalty of twelve years and one day cadena temporal, with the
accessories of the law, to indemnify the offended party in the sum of P700
and to pay the costs, for the crime of frustrated murder.
The appellant appealed from this judgment, making two assignments of
error as committed by the trial court, to wit:
1. In holding that the crime committed is frustrated murder, and
2. In not giving any credit to the evidence presented by the defense, finding
the defendant guilty beyond a reasonable doubt.
The evidence of the prosecution shows that the accused and Juana Buralo
was sweethearts. Juana had been jealous of the accused on account of the
latter having frequently visited the house of one Carmen. Their relations
were such that the accused invited Juana to take a walk on the afternoon of
August 9, 1925. Juana refused him, later sending him a note of excuse. On
the third day, or the night of August 11th, the accused went to the threshold
of Cirilo Banyan's house where Juana Buralo had gone to take part in some
devotion. There the accused, revolver in hand, requested Francisco Abellon
to ask Juana to come downstairs and as Abellon refused to do so, the
accused said: "If you do not want to go upstairs, I will get Juana and if
anyone tries to defend her I will kill him."
The accused waited until Juana and her niece Perfecta Buralo came
downstairs, when they went in the direction of their house. The accused,
who was seen by the two girls, followed them without saying a word. It is
only a short distance from the house where the devotion took place to that
of the offended party, the houses being adjacent. As the two girls were
going upstairs, the accused, while standing at the foot of the stairway, fired
a shot from his revolver which wounded Perfecta Buralo, the bullet passing
through a part of her neck, having entered the posterior region thereof and
coming out through the left eye, which was completely destroyed. Due to
proper medical attention, Perfecta Buralo did not die and is on e of the
witnesses who testified at the trial of this case.
The defense, without abandoning its allegation that the accused is not
responsible for the crime, contends that the crime proven is not frustrated
murder but the discharge of a firearm, with injuries, it not having been
proven that it was the accused's intention to kill.
The relations existing between the accused and Juana Buralo, his
disappointment at her not accepting his invitation to take a walk, the fact
that the accused, revolver in hand, went to look for Juana Buralo at the
house where the devotion was being held, later following her to her house,
and especially having aimed at her person--the head--are facts which, in our
opinion, permit of no other conclusion than that, in firing the shot, it was
the accused's intention to kill.
In the decision of this court in the case of United States vs. Montenegro (15
Phil., 1), it was held:
We do not doubt that there may be cases wherein the discharge of a
firearm at another is not in itself sufficient to sustain a finding of the
intention to kill, and there are many cases in the books wherein the
attendant circumstances conclusively establish that on discharging a firearm
at another the actor was not in fact animated by the intent to kill. But, in
seeking to ascertain the intention with which a specific act is committed, it
is always proper and necessary to look not merely to the act itself but to all
the attendant circumstances so far as they are developed by the evidence;
and where, as in the case at bar, a revolver is twice discharged point-blank
at the body of another, and the shots directed at the most vital parts of the
body, it needs but little additional evidence to establish the intent to kill
beyond a reasonable doubt.
The fact that a person received the shot which was intended for another,
does not alter his criminal liability. (Art. 1, par. 3, Penal Code.)
The circumstances qualifying the murder alleged in the complaint are
evidence premeditation and treachery. Even when there is sufficient proof
of premeditation (which we do not believe has been sufficiently
established), yet, it cannot be considered as a qualifying circumstance in the
present case, because the person whom the accused intended to kill was
not Perfecta Buralo, who was hit by the bullet, but her aunt Juana Buralo.
Had evident premeditation been proven, and there being no other
qualifying circumstance of frustrated murder present in this case, the acts
should be held to be frustrated homicide and punished with the maximum
26
degree of the penalty prescribed by law. (Question 2, p. 28, 1890 ed.,
Viada's Penal Code.) But, the fact is that treachery was proven and must be
taken into consideration in this case, because the accused fired at Perfecta
Buralo, employing means which tended to insure the execution of the crime
without running any risk himself from anyone who might attempt to defend
the said offended party. The treachery which, according to the evidence,
would have attended the crime had the bullet hit Juana Buralo was present
in this case because the offended party Perfecta Buralo and Juana were
going upstairs with their backs towards the accused when he fired his
revolver. The Supreme Court of Spain, in a decision of May 7, 1885 (Viada,
do., pp. 29, 30), in holding a crime to be murder and not homicide, stated
the following:
Considering that, according to the concept of treachery as it is explained in
article 10 of the Civil code dealing with said circumstance, it is evident that
in firing the gun which Alejandro Sola was carrying which caused the death
of Nazario Iñigo, he employed means which tended to insure the
commission of the crime without any risk to himself arising from any
defense that might be made by the offended party, for neither the wounded
party Bartolome Lobejano, at whom the shot was aimed in order to kill him
so that he might not testify as to the assault committed upon him shortly
before, as held by the trial court, was not in a position to defend himself in
any way, nor could Nazario Iñigo become aware of any attack so unjustified,
rapid and unforeseen; considering, further, that the purely accidental
circumstance that as a result of the shot a person other than the one
intended was killed, does not modify, in the instant case, the elements
constituting the crime of murder qualified by the treachery with which
Alejandro Sola acted, whether with respect to the wounded Bartolome
Lobejano or to the deceased Nazario Iñigo, for which reason the rules of
article 65 are not applicable herein, the culprit not having, in fact,
committed a crime different from that which he intended, taking into
consideration the substantial and intrinsical meaning thereof, etc.
Although the case just cited refers to the crime of consummated murder,
the doctrine sustained therein is applicable to the case at bar so far as the
concurrence of treachery as a qualifying circumstance is concerned.
The crime now before us is frustrated murder, the accused having intended
to kill and performed all the acts of execution, which would have produced
the crime of murder but which, nevertheless, did not produce it by reason
of causes independent of his will. (Art. 3, Penal Code.)
We find no merit in the first assignment of error.
In regard to the second, it appears beyond a reasonable doubt that the facts
enumerated above constitute the crime of frustrated murder.
With the exception of the qualifying circumstance of treachery, we find no
other aggravating circumstance.
The judgment appealed from being in accordance with the law and the facts
proven, the same is hereby affirmed in all its parts costs against the
appellant. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-47941 April 30, 1985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME TOMOTORGO y ALARCON, defendant-appellant.
ALAMPAY, J.:
Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from
the decision rendered on December 22, 1977, by the Court of First Instance
of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding
him guilty of the crime of parricide for having killed his wife Magdalena de
los Santos. The dispositive portion of said judgment reads, as follows:
WHEREFORE, in view of the foregoing considerations, the accused Jaime
Tomotorgo y Alarcon is hereby condemned to suffer the penalty of reclusion
perpetua and to indemnify the heirs of the deceased Magdalena delos
Santos in the sum of P12,000.00 without subsidiary imprisonment, plus
costs. And considering the circumstances under which the offense was
committed, the court hereby recommends executive clemency for him,
after serving the minimum of the medium penalty of prision mayor.
Let copy of this decision be furnished, his Excellency, the President of the
Philippines, and the Chairman of the Board of Pardons and Parole.
SO ORDERED.
Given at Naga City, this 22nd day of December, 1977.
SGD. ALFREDO S. REBUENA
Judge (Rollo, pg. 10)
The facts of this case as recited in the decision of the trial court and in the
appellee's brief stand uncontroverted and undisputed. From the evidence
27
submitted it is disclosed that the victim, Magdalena de los Santos, was the
wife of the herein accused. Several months prior to the occurrence of the
fatal incident on June 23, 1977, Magdalena de los Santos had been
persistently asking her husband to sell the conjugal home which was then
located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma,
Camarines Sur. She wanted their family to transfer to the house of her
husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN,
pp. 6-10, December 13, 1977). Accused Tomotorgo would not accede to his
wife's request. He did not like to abandon the house wherein he and his
wife were then living. Furthermore, he had no inclination to leave because
he has many plants and improvements on the land which he was then
farming in said municipality of Siruma, Camarines Sur, a town very far from
the place of his in-laws where his wife desired their family to transfer to.
On June 23, 1977, at about seven o'clock in the morning, the accused left his
home to work on his farm Upon his return at about nine o'clock that same
morning. He found his wife and his three-month old baby already gone. He
proceeded to look for both of them and sometime later on, on a trail about
two hundred (200) meters from their home, he finally saw his wife carrying
his infant son and bringing a bundle of clothes. He asked and pleaded with
his wife that she should return home with their child but she adamantly
refused to do so. When appellant sought to take the child from his wife, the
latter threw the baby on the grassy portion of the trail hereby causing the
latter to cry. This conduct of his wife aroused the ire of the herein accused.
Incensed with wrath and his anger beyond control, appellant picked lip a
piece of wood nearby and started hitting his wife with it until she fell to the
ground complaining of severe pains on her chest. Realizing what he had
done, the accused picked his wife in his arms and brought her to their
home. He then returned to the place where the child was thrown and he
likewise took this infant home. Soon thereafter, Magdalena de los Santos
died despite the efforts of her husband to alleviate her pains.
After the accused changed the dress of his wife, he reported the tragic
incident to the Barangay Captain of their place who brought him to
Policeman Arellosa to whom the accused surrendered. He also brought with
him the piece of wood he used in beating his wife.
Charged with the crime of parricide, the accused at his arraignment on
November 24, 1977, with assistance from his counsel de-oficio, pleaded not
guilty to the said offense. However, when his case was called for trial on
December 13, 1977, his counsel manifested to the court that after his
conference with the accused, the latter expressed a desire to change his
previous plea of not guilty to that of guilty. Accordingly, and upon motion by
the counsel of the accused and without objection on the part of the
prosecution, the trial court allowed the accused to withdraw his original
plea. Upon being re-arraigned, the accused entered a plea of guilty. He
confirmed the manifestations made by his counsel to the court regarding his
desire to change his initial plea. He expressed his realization of the gravity of
the offense charged against him and the consequences of his plea. His
counsel was then permitted by the court to establish the mitigating
circumstances which were then invoked in favor of the accused.
After the accused had testified and upon his plea given in open court, the
court below found him guilty of the crime of parricide, but with three
mitigating circumstances in his favor, namely: voluntary surrender, plea of
guilty, and that he acted upon an impulse so powerful as naturally to have
produced passion and obfuscation.
With the imposition by the court below of the penalty of reclusion perpetua
on the herein accused and the subsequent denial of his motion for
reconsideration of the judgment rendered against him, the accused through
his counsel filed a notice of appeal to this Court.
In his appeal, accused argues and contends that the lower court erred:
1. In disregarding its own findings of fact which showed manifest lack of
intent to kill;
2. In disregarding the provisions of Article 49 of the Revised Penal Code
which prescribes the proper applicable penalty where the crime committed
is different from that intended;
3. In not following the mandatory sequence of procedures for determining
the correct applicable penalty;
4. In denying the appellant the benefits of the Indeterminate Sentence Law.
(Appellant's Brief, pg. 1, pars. 1-4)
We find no merit in the appeal of the accused herein which assails only the
correctness of the penalty imposed by the trial court on him.
Appellant submits that the penalty for the felony committed by him which is
parricide being higher than that for the offense which he intended to
commit, and which he avers to be that of physical injuries only, the
provisions of Article 49 of the Revised Penal Code which relate to the
application of penalties should have been observed and followed by the trial
court. The said provision of law which accused invokes provides that:
ART. 49. Penalty to be imposed upon the principals when the crime
committed is different from that intended in cases in which the felony
28
committed is different from that which the offender intended to commit,
the following rules shag be observed;
1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit, the
penalty corresponding to the latter shall be imposed in its maximum period.
xxx xxx xxx
Continuing, appellant argues in his appeal brief submitted to this Court,
that:
xxx xxx xxx
The felony actually committed, parricide. has a higher penalty (reclusion
perpetua to death) than the felony intended, qualified physical injuries
(reclusion temporal medium and maximum). Hence, since the penalty
corresponding to the felony intended shall be imposed in its maximum
period, the prescribed penalty is therefore reclusion temporal maximum.
This is a divisible penalty.
Under Article 64, sub-par. 5, of the Penal Code,
When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to
that prescribed by law, in the period that it may deem applicable, according
to the number and nature of such circumstances.
The trial court itself found "that the accused is entitled to three (3)
mitigating circumstances with no aggravating circumstances, namely:
voluntary surrender, plea of guilty, and obfuscation. We submit that the
plea of guilty, which, as we had shown earlier, was improvidently made,
should no longer be considered. This leaves only two mitigating with no
aggravating. Sufficient compliance with the law. Hence, an automatic
lowering of the penalty by one degree, or to reclusion temporal medium
This being a case where a period constitutes the entire range of the penalty
prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9)
Appellant maintains the belief that he should be punished only for the
offense he intended to commit which he avers to be serious physical
injuries, qualified by the fact that the offended party is his spouse. Pursuant
to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code
and as his wife is among the persons mentioned in Art. 246 of the same
code, appellant contends that the penalty imposable should then be
reclusion temporal in its medium and maximum periods. On this mistaken
premise, appellant therefore claims that the penalty prescribed by law for
his offense is divisible and he should thus be entitled to the benefits of the
Indeterminate Sentence Law.
These contentions of the accused are manifestly untenable and incorrect.
Article 4 of the Revised Penal Code expressly states that criminal liability
shall be incurred by any person committing a felony (delito) although the
wrongful act be different from that which he intended and that the accused
is liable for all the consequences of his felonious acts.
The reference made by the accused to Article 263 of the Revised Penal Code
which prescribes graduated penalties for the corresponding physical injuries
committed is entirely misplaced and irrelevant considering that in this case
the victim died very soon after she was assaulted. It will be, therefore,
illogical to consider appellant's acts as falling within the scope of Article 263
of the Revised Penal Code. The crime committed is parricide no less.
We are in complete accord with and we sustain the ruling made by the
courts below that the accused is not entitled to the benefits of the
Indeterminate Sentence Law. The court sustains the submissions of the
appellee that —
... Article 49 of the Revised Penal Code does not apply to cases where more
serious consequences not intended by the offender result from his felonious
act because, under Article 4, par. I of the same Code, he is liable for all the
direct and natural consequences of his unlawful act. His lack of intention to
commit so grave a wrong is, at best mitigating (Article 13, par. 3).
Article 49 applies only to cases where the crime committed is different from
that intended and where the felony committed befalls a different person
(People vs. Albuquerque, 59 Phil. 150).
Article 246 of the Revised Penal Code punished parricade with the penalty
of reclusion perpetua to death, which are two indivisible penalties. As the
commission of the act was attended by mitigitating circumstances with no
aggravating circumstances, the lesser penalty, which is reclusion perpetua,
should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs.
Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief,
pp. 6-7). (Emphasis supplied)
We hold that the fact that the appellant intended to maltreat the victim
only or inflict physical imjuries does not exempt him from liability for the
resulting and more serious crime committed. In the case of People vs.
Climaco Demiar, 108 Phil. 651, where the accused therein had choked his
mother in a fit of anger because the latter did not prepare any food for him,
it was ruled that hte crime committed by Demiar is parricide (Article 246,
Revised Penal Code), the deceased victim of his criminal act being his
legitimate mother. Said crime was declared as punishable with reclusion
perpetua to death. As the mitigating circumstance of alck of intent to
29
commit so grave a wrong. (Article 13 (3 Id.) The penalty imposed on the
herein accused is therefore correct in the light of the relevant provisions of
law and jurisprudence.
The trial court in its consideration of this case had added a recommendation
that "executive clemency be extended to the accused-appellant after his
service of the minimum of the medium penalty of prison mayor." The
Solicitor General likewise concludes and prays in the People's Brief that in
view of the circumstances which attended the commission of the offense, a
recommendation for the commutation of the penalty would be appropriate.
(Appellee's Brief, pg. 7). This Court is constrained to take note that the
accused-appellant is said to have been in detention since June 23, 1977 or
for more than seven years already. This Court can do no less than express its
hope that hte accused-appellant can be now extended an absolute or
conditional pardon by the President of the Republic of the Philippines or
that there be a commutation of his sentence so that he may qualify and be
eligible for parole.
WHEREFORE, the appealed judgment is hereby affirmed without any
pronouncement as to costs.
Considering the circumstances which attended the commission of the
offense, the manifest repentant attitude of the accused and his remorse for
his act which even the trial court made particular mention of in its decision
and the recommendation made by the Office of the Solicitor General as well
as number of years that the accused-appellant had been imprisoned, this
Court can do no less than recommend that executive clemency be extended
to the accused-appellant, Jaime Tomotorgo y Alarcon, or that his sentence
be commuted so that he can now qualify and be considered eligible for
parole. This recommendation of the Court should be promptly brought to
the attention of the President of the Republic of the Philippines by the
proper authorities in whose custody the herein accused has been placed.
Aside from this, let copy of this decision be furnished the Office of the
President of the Republic of the Philippines and the Chairman of the Board
of Pardons and Parole.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 205228 July 15, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee,
vs.
ROLLY ADRIANO y SAMSON, LEAN ADRIANO @ DENDEN, ABBA SANTIAGO
y ADRIANO, JOHN DOE AND PETER DOE, Accused,
ROLLY ADRIANO y SAMSON, Accused-Appellant.
DECISION
PEREZ, J.:
This is an appeal of the Decision1 of the Court of Appeals dated 30 May 2011
in CA-G.R. CR-HC No. 04028, which affirmed the Decision2 of the Regional
Trial Court dated 7 April 2009, convicting accused-appellant Rolly Adriano y
Santos (Adriano) for the crime of Homicide (Crim. Case No. 13159-07) for
the killing of Ofelia Bulanan (Bulanan) and for the crime of Murder (Crim.
Case No. 13160-07) for the killing of Danilo Cabiedes (Cabiedes) in "People
of the Philippines v. Rolly Adriano y Sales."
Adriano was charged with two (2) counts of Murder. The two (2) sets of
Information read:
Crim. Case No. 13159-07
On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in
Malapit, San Isidro, Nueva Ecija, within the jurisdiction of this Honorable
Court, the above-named accused, conniving together, with intent to kill,
treachery and abuse of superior strength, willfully shot several times with
assorted firearms Ofelia Bulanan, hitting her on the different parts of her
body, resulting in her death to the damage of her heirs.3
Crim. Case No. 13160-07
On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in
Malapit, San Isidro, Nueva Ecija, within the jurisdiction of this Honorable
Court, the above-named accused, conniving together, with intent to kill,
treachery and abuse of superior strength, willfully shot several times with
assorted firearms Danilo Cabiedes, hitting him on the different parts of his
body, resulting in his death to the damage of his heirs.4
Version of the Prosecution:
On 13 March 2007, at around 8:00 a.m., Police Officer 1 Matthew Garabiles
(POI Garabiles) and P02 Alejandro Santos (P02 Santos), in civilian clothes,
30
were on their way to Camp Olivas, Pampanga, riding a motorcycle along
Olongapo-Gapan National Road.5
While they were at Barangay Malapit San Isidro, Nueva Ecija, a speeding
blue Toyota Corolla (Corolla) with plate no. WHK 635, heading towards the
same direction, overtook them and the car in front of them, a maroon
Honda CRV (CRY) with plate no. CTL 957.6
When the Corolla reached alongside the CRV, the passenger on the front
seat of the Corolla shot the CRV and caused the CRV to swerve and fall in
the canal in the road embankment. Four (4) armed men then suddenly
alighted the Corolla and started shooting at the driver of the CRV, who was
later identified as Cabiedes. During the shooting, a bystander, Bulanan, who
was standing near the road embankment, was hit by a stray bullet. The four
armed men hurried back to the Corolla and immediately left the crime
scene. PO 1 Garabiles and P02 Santos followed the Corolla but lost track of
the latter.7
Later, both Cabiedes and Bulanan died from fatal gunshot wounds: Cabiedes
was pronounced dead on arrival (DOA) at the Good Samaritan General
Hospital due to three (3) gunshot wounds on the left side of his chest while
Bulanan died on the spot after being shot in the head.
During the investigation, the police learned that the Corolla was registered
under the name of Antonio V. Rivera (Rivera). Upon inquiry, Rivera admitted
that he is the owner of the Corolla but clarified that the Corolla is one of the
several cars he owns in his car rental business, which he leased to Adriano.
Later that day, Adriano arrived at Rivera's shop with the Corolla, where he
was identified by P02 Santos and PO 1 Garabiles as one of the four
assailants who alighted from the passenger's seat beside the driver of the
Corolla and shot Cabiedes. He was immediately arrested and brought to the
Provincial Special Operations Group (PSOG) headquarters in Cabanatuan
City.8
In examining the crime scene, the Nueva Ecija Provincial Crime Laboratory
Office recovered one (1) deformed fired bullet from a .45 caliber firearm
and five (5) cartridges from a .45 caliber firearm.9
Version of the Defense
Adriano testified that on 13 March 2007, at about 6:00 a.m., at the time of
the incident, he was at his house in Dolores, Magalang, Pampanga, washing
the clothes of his child. After doing the laundry, he took his motorcycle to a
repair shop and left it there.10
At about 8:00 a.m., Adriano went to the house of his friend, Ruben Mallari
(Mallari), to ask for a lighter spring needed to repair his motorcycle. After
having coffee in Mallari' s house, Adriano went home and brought his child
to his mother. On his way to his mother's house, he met his brother-in-law,
Felix Aguilar Sunga (Sunga). After leaving his child at his mother's house,
Adriano went to the cockpit arena to watch cockfights, where he saw his
friend, Danilo Dizon (Dizon). After the fights, he left the cockpit at about
2:00 p.m. and went home and took a rest.11
After resting, Adriano picked-up his motorcycle and proceeded to a store
and stayed there. At around 5 :00 p.m., he went back home. After a while,
he received a call from a certain Boyet Garcia (Garcia), who borrowed the
Corolla from him, which he rented from Rivera.12
At 8:00 p.m., he met with Garcia to get the Corolla back. After dropping
Garcia off, Adriano went to Rivera to return the Corolla, where he was
arrested by police officers, thrown inside the Corolla's trunk, and brought to
a place where he was tortured.13
The other defense's witnesses, Lucita Tapnio (Tapnio), Mallari, Sunga, and
Dizon corroborated Adriano's testimony.14
When arraigned, Adriano pleaded not guilty. The other accused, Lean
Adriano alias "Denden," Abba Santiago y Adriano, John Doe, and Peter Doe
remained at large.
During trial, the prosecution presented eight (8) witnesses: (1) PO1
Garabiles, (2) P02 Santos, (3) Police Senior Inspector Roger V. Sebastian, (4)
SP02 Alejandro Eduardo, (5) P02 Jay Cabrera, (6) P03 Antonio dela Cruz, (7)
Adelaida Cabiedes, widow of Cabiedes, and (8) Ricky Flores.
On the other hand, the defense presented Adriano, Tapnio, Sunga, Mallari,
and Dizon as witnesses.
Ruling of the Lower Courts
After trial, the RTC convicted Adriano. The RTC rejected Adriano's defense of
alibi on the ground that it was not supported by clear and convincing
evidence. According to the RTC, Adriano's alibi cannot prevail over the
testimonies of credible witnesses, who positively identified Adriano as one
of the perpetrators of the crime. Also, contrary to the allegations of the
defense, the RTC gave full credence to the testimony of prosecution
witnesses, POI Garabiles and P02 Santos. The RTC determined that the
defense failed to show proof that will show or indicate that PO1 Garabiles
and P02 Santos were impelled by improper motives to testify against
Adriano. The RTC found as proven the assessment of damages against the
accused. Thus did the RTC order Adriano to pay the heirs of Cabiedes the
amount of ₱222,482.00 based on the following: (1) One Hundred Thousand
Pesos (Pl00,000.00) as funeral expenses; (2) Sixty Thousand Pesos
31
(₱60,000.00) as expenses for the food served during the burial; (3) Twelve
Thousand Four Hundred Eighty Two Pesos (1!12,482.00) as groceries used
and served during the wake; and Sixty Thousand Pesos (₱60,000.00) for the
parts and service repair of the CRV.15
The dispositive portion of the R TC Decision dated 7 April 2009 reads:
WHEREFORE, finding accused ROLLY ADRIANO guilty beyond reasonable
doubt of Murder, as charged, for the death of Danilo Cabiedes, there being
no aggravating or mitigating circumstance that attended the commission of
the crime, he is hereby sentenced to suffer the penalty of reclusion
perpetua. Accused Rolly Adriano is also ordered to indemnify the heirs of
Danilo Cabiedes in the amount of Php 50,000.00 and to pay the sum of Php
222,482.00 as actual damages.
And finding ROLLY ADRIANO also guilty beyond reasonable doubt of
Homicide, as charged, for the death of Ofelia Bulanan, likewise, there being
no aggravating or mitigating circumstance that attended the commission of
the offense, he is further sentenced to suffer an indeterminate penalty of
imprisonment from Eight (8) years and One (1) day of prision mayor
medium, as minimum, to Seventeen (17) years and Four (4) months of
reclusion temporal medium, as maximum, and to indemnify the heirs of
Ofelia Bulanan in the amount of Php 50,000.00.16
On appeal to the Court of Appeals, Adriano alleged that the R TC erred when
it failed to appreciate his defense of alibi, as well as the testimonies of the
other defense's witnesses. Adriano contended that the RTC erred when it
gave credence to the testimony of the prosecution witnesses which are
inconsistent and contradictory. In detail, Adriano referred to the following
particulars: 1) whether the culprits started shooting when the victim's
vehicle was still in motion; 2) which side of the vehicle did the shooters
alight from; 3) the identity of the culprit who triggered the fatal shot; 4)
whether the trip of PO1 Garabiles and P02 Santos going to Camp Olivas,
Pampanga was official business; 5) the precise distance of the assailants'
vehicle from that of the two (2) eyewitnesses; and 6) the precise minutes of
the shooting incident.
The Court of Appeals rejected Adriano's attempt to becloud the testimony
of the prosecution witnesses. According to the Court of Appeals, the
prosecution witnesses' positive identification of Adriano as one of the
perpetrators of the crime cannot be overcome by minor inconsistencies in
their testimony. The Court of Appeals ruled that these trivial differences in
fact constitute signs of veracity.
On the defense of alibi, the Court of Appeals affirmed the ruling of the R TC
that Adriano's claim that he was in Dolores, Magalang, Pampanga at the
time of the incident does not convince because it was not impossible for
Adriano to be physically present at the crime scene, in Barangay Malapit,
San Isidro, Nueva Ecija, which can be reached by car in less than an
hour.17 The dispositive portion of the Court of Appeals Decision reads:
WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court
of Gapan City, Nueva Ecija, Br. 36, in Crim. Case Nos. 13159-07 and 13160-
07 is AFFIRMED subject to the Modification that the award of Fifty
Thousand Pesos (Php50,000.00) as civil indemnity to the heirs of Danilo
Cabiedes is INCREASED to Seventy-Five Thousand Pesos (Php75,000.00). In
addition, the Accused-Appellant is ORDERED to pay the heirs of Danilo
Cabiedes the amount of Seventy-Five Thousand Pesos (Php75,000.00) as
moral damages; and the heirs of Ofelia Bulanan the amount of Fifty
Thousand Pesos (Php50,000.00) as moral damages.
SO ORDERED.18
Our Ruling
In cases of murder, the prosecution must establish the presence of the
following elements:
1. That a person was killed.
2. That the accused killed him.
3. That the killing was attended by any of the qualifying circumstances
mentioned in Art. 248.
4. The killing is not parricide or infanticide.
In the case at bar, the prosecution has established the concurrence of the
elements of murder: (1) the fact of death of Cabiedes and Bulanan; (2) the
positive identification of Adriano as one of perpetrators of the crime; and
(3) the attendance of treachery as a qualifying aggravating circumstance and
use of firearms and abuse of superior strength as generic aggravating
circumstances.
Death of Cabiedes
The present case is a case of murder by ambush. In ambush, the crime is
carried out to ensure that the victim is killed and at the same time, to
eliminate any risk from any possible defenses or retaliation from the
victim—19ambush exemplifies the nature of treachery.
Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines
treachery as the direct employment of means, methods, or forms in the
execution of the crime against persons which tend directly and specially to
insure its execution, without risk to the offender arising from the defense
32
which the offended party might make. In order for treachery to be properly
appreciated, two elements must be present: (1) at the time of the attack,
the victim was not in a position to defend himself; and (2) the accused
consciously and deliberately adopted the particular means, methods or
forms of attack employed by him.20 The "essence of treachery is the sudden
and unexpected attack by an aggressor on the unsuspecting victim,
depriving the latter of any chance to defend himself and thereby ensuring
its commission without risk of himself."21
Clearly, treachery is present in the case at bar as the victims were indeed
defenseless at the time of the attack. Adriano, together with the other
accused, ambushed Cabiedes by following the unsuspecting victim along the
national highway and by surprise, fired multiple shots at Cabiedes and then
immediately fled the crime scene, causing Cabiedes to die of multiple
gunshot wounds. When the Corolla swerved into the CRV's lane, Cabiedes
was forced to swiftly turn to the right and on to the road embankment,
finally falling into the canal where his CRY was trapped, precluding all
possible means of defense. There is no other logical conclusion, but that the
orchestrated ambush committed by Adriano, together with his co-accused,
who are still on the loose, was in conspiracy with each other to ensure the
death of Cabiedes and their safety. The means of execution employed was
deliberately and consciously adopted by Adriano so as to give Cabiedes no
opportunity to defend himself or to retaliate.22
All these circumstances indicate that the orchestrated crime was committed
with the presence of the aggravating circumstances of treachery, which
absorbs the aggravating circumstance of abuse of superior strength, and use
of firearms. Indeed, Cabiedes had no way of escaping or defending himself.
Death of Bulanan
We refer back to the settled facts of the case. Bulanan, who was merely a
bystander, was killed by a stray bullet. He was at the wrong place at the
wrong time.
Stray bullets, obviously, kill indiscriminately and often without warning,
precluding the unknowing victim from repelling the attack or defending
himself. At the outset, Adriano had no intention to kill Bulanan, much less,
employ any particular means of attack. Logically, Bulanan's death was
random and unintentional and the method used to kill her, as she was killed
by a stray a bullet, was, by no means, deliberate. Nonetheless, Adriano is
guilty of the death of Bulanan under Article 4 of the Revised Penal
Code,23 pursuant to the doctrine of aberratio ictus, which imposes criminal
liability for the acts committed in violation of law and for all the natural and
logical consequences resulting therefrom. While it may not have been
Adriano's intention to shoot Bulanan, this fact will not exculpate him.
Bulanan' s death caused by the bullet fired by Adriano was the natural and
direct consequence of Adriano's felonious deadly assault against Cabiedes.
As we already held in People v. Herrera24 citing People v. Hilario,25 "[t]he
fact that accused killed a person other than their intended victim is of no
moment." Evidently, Adriano's original intent was to kill Cabiedes. However,
during the commission of the crime of murder, a stray bullet hit and killed
Bulanan. Adriano is responsible for the consequences of his act of shooting
Cabiedes. This is the import of Article 4 of the Revised Penal Code. As held in
People v. Herrera citing People v. Ural:
Criminal liability is incurred by any person committing a felony although the
wrongful act be different from that which is intended. One who commits an
intentional felony is responsible for all the consequences which may
naturally or logically result therefrom, whether foreseen or intended or not.
The rationale of the rule is found in the doctrine, 'el que es causa de la causa
es causa del mal causado ', or he who is the cause of the cause is the cause
of the evil caused.26
As regards the crime(s) committed, we reiterate our ruling in People v.
Nelmida.27 In the aforesaid case, we ruled that accused-appellants should be
convicted not of a complex crime but of separate crimes of two counts of
murder and seven counts of attempted murder as the killing and wounding
of the victims were not the result of a single act but of several acts.28 The
doctrine in Nelmida here is apt and applicable.
In Nelmida, we distinguished the two kinds of complex crime: compound
crime, when a single act constitutes two or more grave or less grave
felonies, and complex crime proper, when an offense is a necessary means
for committing the other. Moreover, we also made a distinction that "when
various victims expire from separate shots, such acts constitute separate
and distinct crimes,"29 not a complex crime.
As borne by the records, the Nueva Ecija Provincial Crime Laboratory Office
recovered six (6) cartridges of bullets from a .45 caliber firearm. This does
not indicate discharge by a single burst. Rather, separate shots are
evidenced. One or more of which, though fired to kill Cabiedes, killed
Bulanan instead. There is thus no complex crime. The felonious acts resulted
in two separate and distinct crimes.
Finally, we ask, may treachery be appreciated in aberratio ictus?
Although Bulanan's death was by no means deliberate, we shall adhere to
the prevailing jurisprudence pronounced in People v. Flora,30 where the
33
Court ruled that treachery may be appreciated in aberratio ictus. In Flora,
the accused was convicted of two separate counts of murder: for the killing
of two victims, Emerita, the intended victim, and Ireneo, the victim killed by
a stray bullet. The Court, due to the presence of the aggravating
circumstance of treachery, qualified both killings to murder. The material
facts in Flora are similar in the case at bar. Thus, we follow the Flora
doctrine.
Also, contrary to the defense's allegation that Bulanan' s death was not
established, a perusal of the records would reveal that Bulanan's fact of
death was duly established as the prosecution offered in evidence Bulanan's
death certificate.31
On the alibi as defense, time and again, we have ruled alibis like denials, are
inherently weak and unreliable because they can easily be fabricated.32 For
alibi to prosper, the accused must convincingly prove that he was
somewhere else at the time when the crime was committed and that it was
physically impossible for him to be at the crime scene.33 In the case at bar,
Adriano claimed he was in Dolores, Magalang, Pampanga at the time of
incident. Adriano's claim failed to persuade. As admitted, Dolores,
Magalang, Pampanga was only less than an hour away from the crime
scene, Barangay Malapit, San Isidro, Nueva Ecija. Hence, it was not
physically impossible for Adriano to be at the crime scene at the time of the
incident.
It is likewise uniform holding that denial and alibi will not prevail when
corroborated not by credible witnesses but by the accused's relatives and
friends.1âwphi1 Therefore, the defense's evidence which is composed of
Adriano's relatives and friends cannot prevail over the prosecution's positive
identification of Adriano as one of the perpetrators of the crime.
The penalty for murder under Article 248 of the Revised Penal Code is
reclusion perpetua to death. In the case at bar, as the circumstance of abuse
of superior strength concurs with treachery, the former is absorbed in the
latter. There being no aggravating or mitigating circumstance present, the
lower penalty should be imposed, which is reclusion perpetua, in
accordance with Article 63, paragraph 2 of the Revised Penal Code.
To recover actual or compensatory damages, basic is the rule that the
claimant must establish with a reasonable degree of certainty, the actual
amount of loss by means of competent proof or the best evidence
obtainable.34Documentary evidence support the award of actual damages in
this case. The RTC computed the amount of actual damages as ₱222,482.00.
However, a perusal of the records reveals that the amount of award of
actual damages should be ₱232,482.00 as duly supported by official
receipts.35 Therefore, we hereby increase the award of actual damages from
₱222,482.00 to ₱232,482.00.
WHEREFORE, the appeal is DISMISSED. The assailed Decision of the Court of
Appeals in CA-G.R. CR-HC No. 04028 is AFFIRMED with MODIFICATIONS.
Appellant-appellant ROLL Y ADRIANO y SAMSON is found GUILTY beyond
reasonable doubt of MURDER (Criminal Case No. 13160-07) for the killing of
DANILO CABIEDES and is hereby sentenced to suffer the penalty of reclusion
perpetua. Accused-appellant ROLLY ADRIANO y SAMSON is ordered to pay
the heirs of DANILO CABIEDES the amount of Seventy Five Thousand Pesos
(₱75,000.00) as civil indemnity, Seventy Five Thousand Pesos (₱75,000.00)
as moral damages, Thirty Thousand Pesos (₱30,000.00) as exemplary
damages, and Two Hundred Thirty Two Thousand Four Hundred Eighty Two
Pesos {₱232,482.00) as actual damages.
Accused-appellant ROLLY ADRIANO y SAMSON is also found guilty beyond
reasonable doubt of the crime of MURDER (Criminal Case No. 13159-07) for
the killing of OFELIA BULANAN and is hereby sentenced to suffer the penalty
of reclusion perpetua. Accused-appellant ROLLY ADRIANO y SAMSON is
ordered to pay the heirs of OFELIA BULANAN in the amount of the amount
of Seventy Five Thousand Pesos (₱75,000.00) as civil indemnity, Seventy
Five Thousand Pesos (₱75,000.00) as moral damages, Thirty Thousand Pesos
(₱30,000.00) as exemplary damages, and Twenty Five Thousand Pesos
(₱25,000.00) as temperate damages in lieu of actual damages.
All monetary awards shall earn interest at the rate of 6o/o per annum from
the date of finality until fully paid.
SO ORDERED.
34
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-37507 June 7, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff- appellee,
vs.
WILLIAM PAGE, defendant- appellant.
AQUINO, J.:
William Page appealed from the decision of the Court of First Instance of
Rizal dated July 21, 1973, convicting him of robbery with homicide,
sentencing him to reclusion perpetua, and ordering him to pay the heirs of
Veronica Villaverde-Balacapo an indemnity of P12,000 plus P20,000 as
moral damages (Criminal Case No. 5396). The judgment of conviction was
based on the following facts:
According to Page's confession (Exh. C), at around four o'clock in the
afternoon of February 13, 1972 Crisanto Camposano, alias Boy Sangkay, a
resident of Bagong Ilog, Baclaran, Parañaque , Rizal, went to the house of
William Page y Ubina located at 143 Pildira Street, near the Manila
International Airport, Pasay City, They were friends since boyhood. Page
was an eighteen-year old third year high school student at the Arellano'
University in Pasay City (Exh. H).
From Page's house, the two went to Camposano's house, where they met
the latter's father who was drinking with a companion. Camposano's father
gave Page some liquor to drink. Page and Camposano stayed at the latter's
house up to ten o'clock in the evening (Exh. C).
At past ten o'clock, Page and Camposano went to the rotonda or
intersection of Taft Avenue and F. B. Harrison Boulevard, where they
boarded a Manila-bound jeepney. Page was armed with a balisong knife.
Camposano had a revolver.
According to Page's confession, he seated himself beside a male passenger
who was near the driver on the front seat. Camposano took a seat at the
back of the jeepney where two female passengers were seated. (The male
passenger turned out to be Randolf Scot, a thirty-year old employee of the
Hyatt Regency Hotel who was on his way to work. The female passengers
were the sisters, Veronica Villaverde-Balacapo and Cesarean Villaverde).
With the jeepney was in front of the San Antonio Savings Bank on Harrison
Boulevard, Page and Camposano told the driver to turn left on Russel
Avenue, going to M. Roxas Boulevard, and then to turn left going to
Parañaque . There, they held up the driver and the three passengers. They
got the money and pieces of jewelry of the passengers and the driver. From
the rear view mirror of the jeepney, Page saw Camposano dumping the two
female passengers on Roxas Boulevard in front of Casa Marcos. Then, the
two directed the driver to proceed to the airport. They left the jeepney at
Pildira Street (where Page resided). Camposano gave Page a watch and a
woman's ring as his share of the loot.
Page admitted that he had been charged with theft but the case was
dismissed in the municipal court. He knew certain hoodlums named Remy,
Manoling, Cuerson and Edgar whose specialty was holding up taxicabs (Exh.
C).
Scot gave a slightly different version of the holdup. He testified that when
the jeepney reached that portion of Harrison Boulevard in front of the San
Antonio Savings Bank, Page pressed a knife at the neck of Scot and shouted:
"This is a holdup. Don't move." Page got Scot's diary book containing a one
peso bill. Page ordered the driver, Eduardo Dilla, to shut off the lights of the
jeepney, to turn left on Russel Avenue, and to proceed to Roxas Boulevard.
Page and Camposano covered their faces with pieces of cloth.
Camposano told the women passengers to bring out their money and not to
shout "or else there will be shots". They replied that they had already given
everything to Camposano.
When the jeepney was in front of Casa Marcos and El Presidente Hotel, one
of the women jumped out of the jeepney. (The husband of one of the
women was a waiter at Casa Marcos). The other woman shouted.
Camposano kicked her, thus causing her to fall out of the jeepney.
Camposano noticed that a car was following the jeepney. Believing that it
was a police car, he ordered Villa (Dilla) to drive at full speed.
According to Scot, at an isolated place called Baltao Street near the airport,
Page and Camposano told the driver to stop. Page robbed Scot of his other
one peso bill and divested the driver of his earnings after boxing him for
making some resistance. Then, the two malefactors fled to a dark alley. Scot
and the driver reported the holdup to the police of Parañaque . It was
already eleven o'clock.
Lieutenant Casiano Eugenio the precinct commander, showed them a
photograph of Camposano. Dilla and Scot Identified him as one of the two
hoodlums. Eugenio and the two robbery victims repaired to the residence of
Camposano at Bagong Ilog Baclaran. They saw Camposano, whom Dilla
fingered, but Camposano fired shots at them and was able to elude pursuit
35
due to the darkness of the night. He was killed by the Pasay City policemen
while he was committing another crime.
The next day policemen went to Page's residence near the airport to
apprehend him. He was not there. His father, in the presence of his aunt,
promised to surrender him.
Page was arrested in the morning of February 24, 1972 at the Jose Abad
Santos High School of the Arellano University in Pasay City. In the afternoon
of that day, his statement was taken down by Patrolman C. Prepena and
sworn to before the municipal judge (Exh. C).
The woman, who jumped from the jeepney (according to Scot's story), was
Veronica Balacapo. She was brought to the Philippine General Hospital by a
good Samaritan, Manolo Daval, Santos. She was already dead when she
reached the hospital.
The other woman, Cesarea Villaverde (the sister of Veronica), who was
pushed by Camposano out of the jeepney, was brought to the Ospital ng
Maynila. The record is not clear as to whether she survived.
The postmortem examination of the body of Veronica Balacapo, a forty-two
year old married woman, revealed that she suffered (1) abrasions on the left
eyebrow, left shoulder, left elbow and sacral region; (2) bilateral severe
hematoma on the occipital region of the scalp; (3) fractures on the base of
the cranial fossa and the fourth and fifth ribs along the midclavicular line,
and (4) hemorrhage in the posterior cranial fossa. Death was caused by the
severe and traumatic meningeal hemorrhage (Exh. A and F).
On February 15, 1972 or before Page was arrested, the chief of police filed a
complaint for robbery with murder in the municipal court of Parañaque
against Camposano and John Doe (Criminal Case No. 30039). The complaint
was based on the investigation of Dilla and Scot. Page did not present any
evidence at the preliminary investigation. The case was remanded to the
Court of First Instance where the fiscal filed an information for robbery with
homicide against Page and Camposano.
After trial, the trial court rendered the judgment of conviction already
mentioned.
In this appeal, appellant Page contends that the trial court erred (1) in
relying on his repudiated confession, (2) in convicting him although he was
not Identified by Randolf Scot, the prosecution's eyewitness, and (3) in
convicting him on the basis of weak circumstantial evidence.
1. Patrolman Prepena who took Page's confession, testified on its
voluntariness. Lieutenant Eugenia the precinct commander, and Patrolmen
Manolito Miranda and Jose Elquiero, the arresting officer, denied that Page
was maltreated while he was in the custody of the police.
Page admitted that when he was brought before the municipal judge for the
administration of the oath on his confession, he could have complained to
the latter about the alleged maltreatment. He did not complain.
His aunt, Prudencia Alupit, and his own lawyer visited him in jail. He
allegedly confided to them that he was maltreated. He requested them to
take action against the policemen. They did not complain to the proper
authorities about the alleged maltreatment.
The learned trial court made a searching and conscientious analysis of
appellant's evidence on the alleged duress employed by the police in
extracting his confession. It concluded that the confession was voluntary.
We find no error in that conclusion. Page's confession, having been taken
before the new Constitution took effect, is admissible although the
requisites in section 20 of article IV were not observed (Magtoto vs.
Manguera, L-37201-2, March 3, 1975, 63 SCRA 4).
Certain details found in the confession are strong indicia of its authenticity.
Page specified therein that his residence was at 143 Pildira Street, an
address which jibes with the address in his school record (Exh. I); that his
maternal surname is Ubina; that he met Camposano at four o'clock in the
afternoon of February 13, 1972; that they went to Camposano's residence,
where he (Page) was given liquor by Camposano's father; that he directed
the driver to follow a certain route; that Camposano was from Sorsogon;
that Page was acquainted with some hoodlums, and that he (Page) was
charged with theft. These details would not have been embodied in the
confession had not Page freely disclosed them to the police.
2. It is true that Scot during the trial did not point to Page as the person who
sat beside him on the front seat of the jeepney and who pressed an open
knife at his neck. Testifying nine months after the occurrence, Scot could not
remember the face of Page. He recalled only that Page's hair was thick.
Patrolman Ruben Crue Santiago, one of those who investigated Page,
testified that the latter was sporting long hair and looked like a hippie at the
time of the investigation (2 tsn November 21, 1972). The photographs of
Page taken in July, 1971, or about seven months before the holdup, when
Page was booked for theft, show that he had long hair (Exh. G).
Scot's failure to identify Page during the trial is of no moment because the
crucial fact is that Page in his own confession admitted his participation in
the holdup. Page stated in his confession:
36
Iyong jeep na pampasahero na aming sinakyan sa may Rotonda ng Baclaran
patungong Maynila, biaheng Harrison, ay may sakay na dalawang babae sa
hulihan at isang lalaki sa unahan sa tabi ng driver at ako ay naupo sa
harapan katabi ko iyong lalaki at si Boy Sangkay (Camposano) ay sa gawing
hulihan.
Pagdating namin sa may tapat ng San Antonio Bank ay hinoldup namin iyong
jeep pati ng mga pasahero at pinaliko namin sa Russel Avenue patungong
M. Roxas Blvd. Pagdating namin sa M. Roxas Blvd., ay pinakaliwa namin
patungong Parañaque at noong kami'y nasa M. Roxas Blvd. na, ay kinuha
namin ang mga pera at alahas noong mga pasahero at tsuper ng jeep at
matapos noon any nakita ko na lang sa salamin na inihulog ni Boy Sangkay
iyong dalawang babae sa may tapat ng Casa Marcos sa M. Roxas Blvd.
At pagkatapos ay nagpahatid kami patungong MIA at bumaba kami sa
Pildira sa Pasay City. (No. 13, Exh. C).
Scot's testimony and the necropsy report (Exh. A) prove the corpus delicti or
the fact that robbery with homicide was committed. Page's extrajudicial
confession was corroborated by the evidence on the corpus delicti (Sec. 3,
Rule 133, Rules of Court).
3. Appellant's third contention that his guilt was not proven beyond
reasonable doubt, because the prosecution's evidence is mainly
circumstantial, is not meritorious.
Once it is conceded that his confession is voluntary then there cannot be
any doubt as to his guilt. We have already shown that his confession was
not vitiated by compulsion or constraint.
The alibi, which Page interposed during the trial and which his counsel did
not bother to discuss in his brief, appears to be a complete fabrication. Page
testified that at the time of the commission of the holdup, he was residing
with his aunt at 26 Simbo Street, Fort Bonifacio, Makati, Rizal and that he
was sick.
That testimony was squarely belied by Page's school record (Exh. 1) which
shows that, when the holdup was perpetrated, he was residing with his
father at 143 Pildira Street, Pasay City near the airport (or at 101 Interior
Rivera Village near the airport, Exh. H) and that on February 11, 1972, or
two days before the holdup was committed, he was not sick because on
that date he was not absent from school.
In any event, even if he was a Makati resident at the time of the holdup,
that would not have precluded his participation in the commission of that
offense at Baclaran, Parañaque , which is not very far from Fort Bonifacio.
To establish an alibi, the accused must show that he was in another place
for such a period of time that it was impossible for him to have been at the
place where the crime was committed at the time of its commission (People
vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350, 354). Page's alibi
does not satisfy that requirement.
The more important point to consider is whether the trial court correctly
ruled that Page, as a fellow conspirator of Camposano, could be held liable
for robbery with homicide or for robbery only. In his letters to this Court,
Page, not being a lawyer and not knowing the rules on conspiracy, insisted
that he had nothing to do with the death of Veronica Villaverde Balacapo.
Of course, it was Camposano alone who directly brought about Veronica's
death. Whether Veronica jumped from the jeepney, as testified by Scot, or
whether Camposano kicked and pushed her and her sister, Cesarean out of
the jeepney, as stated by Page in his confession, Camposano's culpability for
that flagitious deed cannot be disputed.
If Veronica jumped out of the jeepney, it must have been because she was
in mortal dread that Camposano would shoot her. As fear gripped Veronica,
she, in desperation, thought of scampering out of the moving jeepney. Her
head struck the pavement. It was broken. A hemorrhage ensued. She died
before medical assistance could be extended to her.
The rule is that if a man creates in another person's mind an immediate
sense of danger, which causes such person to try to escape, and, in so doing,
the latter injures himself, the man who creates such a state of mind is
responsible for the resulting injuries (People vs. Toling, L-27097, January 17,
1975, 62 SCRA 17,33).
We find that the trial court's conclusion as to conspiracy is borne out by the
evidence. Page and Camposano were boyhood friends. About six hours
before the crime was committed, they were already together. They were in
the Baclaran rotonda at around ten o'clock in the evening or shortly before
the holdup was committed. They boarded the jeepney in that place. Inside
the jeepney, they coordinated their actions. They directed the jeepney
driver to go near the airport or in the vicinity of Page's residence, a place
which was well-known to the two malefactors. They left the jeepney
together and fled in the same direction.
There is not a scintilla of doubt that a conspiracy to commit robbery existed
between Page and Camposano. The fact that the two armed themselves
with deadly weapons, a knife and a revolver, signified that they were
determined to kill their victims in order to consummate their nefarious
objective.
37
The conspiracy may be inferred from the acts of Page and Camposano.
Those acts reveal that they had agreed to commit robbery inside a
passenger jeepney (Art. 8, Revised Penal Code). This Court may take judicial
notice that that kind of robbery has been frequently committed since the
liberation when the jeepney came into existence as a public conveyance.
Page and Camposano implemented their agreement when they waited for a
passenger jeepney at the Baclaran rotonda and boarded it at the same time.
If they had no evil intention, they could have sat together at the back. But,
they did not do so. Obviously, as previously planned by them, Page took the
front seat so that he could control the driver and at the same time extort
money from him and the other passenger in the front seat. Camposano took
a seat at the back of the jeepney so that he could rob the two female
passengers.
The behavior of Page and Camposano inside the jeepney disclosed a
synchronization of their actions, evincing a prior concert and plan to commit
robbery with violence against and intimidation of persons. Page should
answer for all the consequences of the conspiracy, including the homicide
which was intertwined with the robbery committed by his conspirator. The
homicide was committed on the occasion or by reason of the robbery.
The rule is that where the conspirarcy to commit robbery was conclusively
shown by the concurrent and coordinate acts of the accused, and homicide
was committed as consequence, or on the occasion, of the robbery, all of
the accused are guilty of robo con homicidio whether or not they actually
participated in the killing (People vs. Lingad, 98 Phil. 5; People vs. Puno, L-
31594, April 29, 1974, 56 SCRA 659, 663).
Generally, when robo con homicidio has been proven. all those who had
taken part int the robbery are guilty of the special complex crime unless it
appears that they endoevored to prevent the homicide (U.S. vs. Macalalad,
9 Phil. 1). tha same rule is followed is Spanish jurisprudence.
Son resonsables de este delito (robo con homicidio) en concepto de
autor no solo todos los que cooperen a la muerte, siquiera sea con
supresencia, sino tabien todos los que intevienen en la ejecucion del robo
aun cuando no temon parte en el homicidio: (2 Cuello Calon, Derecho Penal,
1975 Edition, p. 976).
Cuestion II. Comedio un robo con violencia e intimidacion e las personas por
dos sujetos, uno de los cuales dispara un trbuco, dejando muerto en el acto
a un tercero que acude en auxilo de llos rabalos, el que no disparo sera solo
responsable del robo, o al igual que su consorte, incurrira en la pena del
robo con homicido, previsto en el numero 10 del art. 516 que comentamos?
El Tribunal Supremo ha declarado que siendo ambos procesados autores del
robo, lo son igualmentedel homicido que ocurrio en el ultimo delito esta de
tal manera enlazado con el de robo, que a no prestarselo el tercero hubiese
sido muerto como lo fue; y que por ambos procesados, son autores uno y
otro, segun el art. 13 del Codigo penal, y por lo lmismo responsables los dos
de todas las consequencias de su accion." (Sentencia de 30 de Abril de 1872;
3 Viada, Codigo Penal 347).
El propio Tribunal Supremo ha resulto; 'que si resulta probado la
delincuencia del procesado en el hecho generador, que es el robo, con
ocasion del que se cometio un homijcidio, basta esto, en conformidad a lo
dispuesto en, el num. 1.º del art. 516, para conderearle tambien
responsable de homicidio; resolucion cuya justicia evidencia aun mas al
parrafo segundo del art. 518, en el que se declara que los malchechores
presentes a la ejecucion de un robo en despoblado y en cuadrilla
so autores de cualquera de los atentados que esta cometa. si on constare
que procuraron impedirios. (Sentencia de 23 de Febrero de 1872; 3 Viada,
Codigo Penal, Cuarta Edicion, p. 347).
It may be added that the presence of Page in the front seat, armed with
a balisong, must have emboldened Camposano to threaten Veronica
Balacapo and to cause her death with impunity.
The lower court failed to order the accused to pay the sum of P95 as the
value of the things taken by Camposano from the deceased victim.
The case of Page, a former high school student, now twenty four years old,
the child of estranged parents (he lived with his father), who, at the age of
eighteen years, was implicated in robbery with homicide, undoubtedly by
reason of poverty, should ordinarily excite some sympathy and might evoke
compassionate justice.
Pressed by his lawyer to examine his conscience and to state truthfully
whether he was implicated in the holdup, Page cried and said: "Before the
eyes of God, I really do not have anything to do with it. That is why I am very
sad, sir. I am being charged for a crime which I have not done. I have been in
jail. I have nothing to do with it" (19 tsn December 19, 1972).
Of course, he did not kill the victim. But, under the rules of conspiracy, he is
deemed to be a co-principal in the robbery with homicide.
He testified that he was single, However, Rosita Lareza, claiming to be his
wife, and Teresita Cordero, posing as his girl friend, filed written requests
for the early disposition of his case (pp. 125 and 140, Rollo).
We have already mentioned that he was charged with theft in the municipal
court but the case was dismissed. At the time the instant case was filed in
38
1972, he was charged also in the municipal court with simple robbery and
two cases of robbery with murder (Criminal Cases Nos. 30000, 30001 and
30038) (p. 12, Expediente of Criminal Case No. 5396). He was also charged
in Criminal Cases Nos. 5395 and 9765 of the Court of First Instance of Rizal.
(See I. S. No. 73-5054 for robbery filed in the fiscal's office at Pasig, Rizal, pp.
63, 70 and 78 of Rollo). What happened to those cases is not shown in the
record.
His behavior in prison has not been exemplary. On October 7, 1975 Page
and five other prisoners comandered the truck, which was delivering
foodstuffs at the prison compound, held as hostages the driver and the
kitchen supervisor, and tried to escape. Page and four others were
recaptured (p. 119, Rollo).
Page in his letter to the Chief Justice dated April 14, 1977 manifested that,
inasmuch as he could not endure the discomforts of prolonged
confinement, he was amenable to be electrocuted (he was only sentenced
to reclusion perpetua by the trial court).
This is a case where considerations of leniency are out of place. The full
force of retributive justice should be brought to bear upon the accused.
Many persons have been victimized in extortions or holdups committed in
buses, taxicabs and jeepneys. The court should cooperate with the agents of
the law in making these public conveyances a safe means of travel.
WHEREFORE, the lower court's judgment is affirmed with slight modification
that appellant should further pay-the heirs of the victim the sum of P95
representing the value of the watch, earrings and necklace taken from her.
Costs against the defendant-appellant.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16486 March 22, 1921
THE UNITED STATES, plaintiff-appelle,
vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel Roco for appellant.
Acting Attorney-General Feria for appellee.
STREET, J.:
The rather singular circumstances attending the commission of the offense
of homicide which is under discussion in the present appeal are these:
At about noon, on November 29, 1919, while the interisland
steamer Vigan was anchored in the Pasig River a short distance from the
lighthouse and not far from where the river debouches into the Manila Bay,
a small boat was sent out to raise the anchor. The crew of this boat
consisted of the accused, Calixto Valdez y Quiri, and six others among whom
was the deceased, Venancio Gargantel. The accused was in charge of the
men and stood at the stern of the boat, acting as helmsman, while Venancio
Gargantel was at the bow.
The work raising the anchor seems to have proceeded too slowly to satisfy
the accused, and he accordingly began to abuse the men with offensive
epithets. Upon this Venancio Gargantel remonstrated, saying that it would
be better, and they would work better, if he would not insult them. The
accused took this remonstrance as a display of insubordination; and rising in
rage he moved towards Venancio, with a big knife in hand, threatening to
stab him. At the instant when the accused had attained to within a few feet
of Venancio, the latter, evidently believing himself in great and immediate
peril, threw himself into the water and disappeared beneath its surface to
be seen no more.
The boat in which this incident took place was at the time possibly 30 or 40
yards from shore and was distant, say, 10 paces from the Vigan. Two scows
were moored to the shore, but between these and the boat intervened a
space which may be estimated at 18 or 20 yards. At it was full midday, and
there was nothing to obstruct the view of persons upon the scene, the
failure of Venancio Gargantel to rise to the surface conclusively shows that,
owing to his possible inability to swim or the strength of the current, he was
borne down into the water and was drowned.
39
Two witnesses who were on the boat state that, immediately after Venancio
leaped into the water, the accused told the remaining members of the crew
to keep quiet or he would kill them. For this reason they made no
movement looking to rescue; but inasmuch as there witnesses are sure that
Venancio did not again come to the surface, efforts at rescue would have
been fruitless. The fact that the accused at his juncture threatened the crew
with violence is, therefore, of no moment except tho show the temporary
excitement under which he was laboring.
On the next day one of the friends of Venancio Gargantel posted himself
near the lighthouse to watch for the body, in the hope that it might come to
the surface and could thus be recovered. Though his friendly vigil lasted
three days nothing came of it.
It may be added that Venancio has not returned to his lodging in Manila,
where he lived as a bachelor in the house of an acquaintance; and his
personal belongings have been delivered to a representative of his mother
who lives in the Province of Iloilo. His friends and relatives, it is needless to
say, take it for granted that he is dead.
The circumstances narrated above are such in our opinion as to exclude all
reasonable possibility that Venancio Gargantel may have survived; and we
think that the trial judge did not err in holding that he is dead and that he
came to his death by drowning under the circumstances stated. The proof is
direct that he never rose to the surface after jumping into the river, so far as
the observers could see; and this circumstance, coupled with the known fact
that human life must inevitably be extinguished by asphyxiation under
water, is conclusive of his death. The possibility that he might have swum
ashore, after rising in a spot hidden from the view of his companions, we
consider too remote to be entertained for a moment.
As to the criminal responsibility of the accused for the death thus
occasioned the likewise can be no doubt; for it is obvious that the deceased,
in throwing himself in the river, acted solely in obedience to the instinct of
self-preservation and was in no sense legally responsible for his own death.
As to him it was but the exercise of a choice between two evils, and any
reasonable person under the same circumstances might have done the
same. As was once said by a British court, "If a man creates in another man's
mind an immediate sense of dander which causes such person to try to
escape, and in so doing he injuries himself, the person who creates such a
state of mind is responsible for the injuries which result." (Reg. vs. Halliday,
61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of Spain, of
July 13, 1882, is cited in the brief of The Attorney-General, as follows: It
appeared that upon a certain occasion an individual, after having inflicted
sundry injuries upon another with a cutting weapon, pointed a shotgun at
the injured person and to escape the discharge the latter had to jump into a
river where he perished by drowning. The medical authorities charged with
conducting the autopsy found that only one of the wounds caused by a cut
could have resulted in the death of the injured person, supposing that he
had received no succour, and that by throwing himself in the river he in fact
died of asphyxia from submersion. Having been convicted as the author of
the homicide, the accused alleged upon appeal that he was only guilty of
the offense of inflicting serious physical injuries, or at most of frustrated
homicide. The Supreme Court, disallowing the appeal, enunciated the
following doctrine: "That even though the death of the injured person
should not be considered as the exclusive and necessary effect of the very
grave wound which almost completely severed his axillary artery,
occasioning a hemorrhage impossible to stanch under the circumstances in
which that person was placed, nevertheless as the persistence of the
aggression of the accused compelled his adversary, in order to escape the
attack, to leap into the river, an act which the accused forcibly compelled
the injured person to do after having inflicted, among others, a mortal
wound upon him and as the aggressor by said attack manifested a
determined resolution to cause the death of the deceased, by depriving him
of all possible help and putting him in the very serious situation narrated in
the decision appealed from, the trial court, in qualifying the act prosecuted
as consummated homicide, did not commit any error of law, as the death of
the injured person was due to the act of the accused." (II Hidalgo, Codigo
Penal, p. 183.)
The accused must, therefore, be considered the responsible author of the
death of Venancio Gargantel, and he was properly convicted of the offense
of homicide. The trial judge appreciated as an attenuating circumstance the
fact that the offender had no intention to commit so great a wrong as that
committed. (Par. 3, art. 9 Penal Code.) In accordance with this finding the
judge sentenced the accused to undergo imprisonment for twelve years and
one day, reclusion temporal, to suffer the corresponding accessories, to
indemnify the family of the deceased in the sum of P500, and to pay the
costs. Said sentenced is in accordance with law; and it being understood
that the accessories appropriate to the case are those specified in article 59
40
of the Penal Code, the same is affirmed, with costs against the appellant. So
ordered.
Mapa, C.J., Malcolm, Avanceña and Villamor, JJ., concur.
Separate Opinions
ARAULLO, J., dissenting:
I dissent from the majority opinion in this case.
The only fact that the evidence shows in that Venancio Gargantel, one of
those who were in a boat of the steamer Vigan subject to the orders of the
accused Calixto Valdez and who at the time was engaged in the work of
raising the anchor of that vessel, which was then lying at the Pasig River, a
short distance from the lighthouse and not far from its mouth at the Manila
Bay, upon seeing that the accused was approaching him, armed with a big
knife, and in the attitude of attacking him, threw himself into the water and
disappeared from the surface and had not been seen again. This event took
place at noon on November 29, 1919, the boat being then about 30 or 40
yards from land and about 10 steps from the Vigan, there being two lighters
moored to the shore and at a distance of about 18 or 20 yards from the
boat. All of these facts are stated in the decision itself.
The original information in the present case, charging Calixto Valdez y Quiri
with the crime of homicide and alleging that as a result of his having thrown
himself into the river under the circumstances mentioned, Venancio
Gargantel was drowned, was presented on December 8, 1919, that is, nine
days afterwards.
There is no evidence whatever that the corpse of Venancio Gargantel had
been found or, what is the same thing, that he had died. From November
28, the day when the event occurred, until December 8, when the
information was filed, it cannot in any manner be maintained that the
necessary time had passed for us to properly conclude, as is alleged in the
information, that said Gargantel had died by drowning, as a consequence of
his having thrown himself into the water upon seeing himself threatened
and attacked by the accused. Neither does it appear in the evidence that all
the precaution necessary for us to assure ourselves, as a sure and proven
fact, that Venancio Gargantel then died by drowning, were taken; nor is
there any evidence that it would have been impossible for him, by
swimming or by any other means to rise to the surface at a place other than
the Pasig River or that where the boat was, from which he threw himself
into the river, and in that manner save himself from death.
From the evidence of the witnesses for the prosecution which is the only
evidence in the record, for the accused di not take the stand, it only appears
that Venancio Gargantel, after having jumped from the boat, did not rise
again to the surface. Such was the statement of two of those witnesses who
were members of the boat's crew at the time. Another witness also
declared that Gargantel was afterwards not again seen at the house where
he lived in this city, No. 711 San Nicolas Street, where he kept his trunks and
some effects, a fact which caused his mother, who lived in the municipality
of Guimbal, in the Province of Iloilo, upon being informed of it and upon the
failure of Venancio to appear in said place, to give special power on the 28th
of that month of December, that is, one month afterwards, to a student,
Ignacio Garzon, to get the trunks and effects of Venancio from said house.
Sid Garzon himself testified, upon being asked whether Venancio Gargantel
had returned to the house of his parents since November 29, 1919, that he
had no information about it, and another witness, Pedro Garcia, of the
prosecution, stated that he had probably died, because he had not seen
Venancio Gargantel.
Therefore, in short, the only fact proved is that since Venancio Gargantel
threw himself into the river, upon being threatened with a knife by the
accused, his whereabouts has remained unknown even at the moment of
rendering judgment in this case, or, February 9, 1920, that is, two and one-
half months after the occurrence of the event.
It is stated in the decision that the friend and parents of Gargantel give him
up for dead. There is nevertheless in the record no statement of any parent
of Gargantel to that effect; for his mother Maria Gatpolitan, a resident of
the municipality of Guimbal, merely stated in the power of attorney
executed in favor of Ignacio Garzon that the latter should take steps in order
that the city fiscal might investigate the death of her son which, according
to information, was caused by another members, of the crew of the
steamer Vigan; and none of his friends, that is, none of the two members of
the party in the boat at that time and of the crew of the steamer Vigan, nor
Maximo Gumbog, the owner of the house in which Gargantel lived in this
city, nor Pedro Garcia, another member of the crew of that steamer, and
finally, nor Ignacio Garzon himself has stated that he gave up Gargantel for
dead, for the simple reason that this was not possible, for they only knew
that he did not again rise to the surface and was not seen again after having
thrown himself into the river from the boat.
For this reason it is stated in the decision that the circumstances therein
stated are such that they exclude all reasonable possibility that Venancio
41
Gargantel could have survived and that the circumstance that never rose to not applicable because the decision of the Supreme Court of Spain refers to
the surface after having jumped into the river, as witnessed by the persons a case, in which the injured party had already been wounded with a cutting
present, together with the admitted fact that human life is necessarily instrument by the accused before throwing himself into the river upon the
asphyxiated under the water, is conclusive that he died. Then, there is latter aiming at him with his gun, it having afterwards been proved upon his
nothing more than a deduction that Gargantel had died based upon those being taken out of the river that the wound inflicted upon him by the
facts and circumstances. accused was mortal; and, consequently, it was declared by said court that,
In my opinion this is not sufficient to convict the accused as guilty of even if the death of the deceased be considered as not having resulted
homicide, because there is the possibility that Gargantel had risen to the exclusively and necessarily from that most grave wound, the persistence of
surface at some place away from the where he threw himself into the river the aggression of the accused compelled his adversary to escape it and
and had embarked on some other vessel in the same river or out of it in the threw himself into the river, by depriving him of all possible help and placing
bay and had gone abroad, or to some province of these Islands and is found him in the serious situation related in the judgment appealed from -a case
in some municipality thereof, cannot be denied. And this is very probable which, as is seen, is very different from that which took place in the present
inasmuch as it does not appear in the record that the necessary case.
investigation has been made in order to determined even with only some For the reasons above stated, I am of the opinion, with due respect to the
measure of certainty, not to say beyond all reasonable doubt, that it was opinion of the majority, that the accused Calixto Valdez y Quiri cannot be
and is impossible to find said person or determined his whereabouts. found guilty of homicide and should be acquitted.
Furthermore, there is not even a presumption juris tantum that he had died,
for in order that this presumption may exist, according to section 334 of the
Code of Civil Procedure, it is necessary that no information about him
should have been received for seven years from his disappearance upon his
throwing himself into the river, which occurred on November 29, 1919, that
is, only about one year and four months ago. And if, in order that a finding
of a civil character in favor of or against some person, may be made, by
virtue of that presumption, it is necessary that seven years should have
elapsed without any notice being received of the person whose
whereabouts is unknown, it is not just, reasonable, or legal that the period
of one year and four months from his disappearance or since Venancio
Gargantel threw himself into the water should suffice for us to impose upon
the accused Calixto Valdez such a grave penalty as that of twelve years and
one day of reclusion temporal, merely assuming without declaring it, as a
proven fact, that Gargantel has died and at the same time finding said
accused to be the author of that death.
Lastly, the decision of the English Supreme Court or that of the Spanish
Supreme Court dated July 13, 1882, cited by the majority opinion is not
applicable. The first, is not applicable because in the present case it is not
proved, beyond reasonable doubt, that some damage resulted to Gargantel,
just as it cannot be considered as proved that he had died, or that he had
been injured or that he had suffered some injury after having thrown
himself into the river as a result of the threat of the accused. The second is

42
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 42607 September 28, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JUAN QUIANZON, defendant-appellant.
Pedro B. Pobre for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
Charged with and convicted of the crime of homicide in the Court of First
Instance of Ilocos Norte, and sentenced to an indeterminate penalty of from
six years and one day of prision mayor, as minimum to fourteen years, seven
months and one day of reclusion temporal, as maximum, Juan Quianzon
appeal to this court for the review of the case.
On February 1, 1934, a novena for the suffrage of the soul of the deceased
person was being held in the house of Victoria Cacpal in a barrio, near
the poblacion, of the municipality of Paoay, Ilocos Norte, with the usual
attendance of the relatives and friends. The incident that led to the filling of
these charges took place between 3 to 4 o'clock in the afternoon. Andres
Aribuabo, one of the persons present, went to ask for food of Juan
Quianzon, then in the kitchen, who, to all appearances, had the victuals in
his care. It was the second or third time that Aribuabo approached
Quianzon with the same purpose whereupon the latter, greatly peeved,
took hold of a firebrand and applied ran to the place where the people were
gathered exclaiming that he is wounded and was dying. Raising his shirt, he
showed to those present a wound in his abdomen below the navel.
Aribuabo died as a result of this wound on the tenth day after the incident.
There is no conflict between the prosecution and the defense as regards the
foregoing facts. The question to be determined is who wounded Aribuabo.
The prosecution claims that it was Juan Quianzon and, to prove it, called
Simeon Cacpal, Roman Bagabay, Gregorio Dumlao and Julian Llaguno to the
witness stand.
The first witness, Simeon Cacpal, claims to have witnessed the wounding of
Andres Aribuabo in the abdomen by Juan Quianzon. However, we find the
testimony of this witness so improbable, incongruent and contradictory that
we consider meritorious the claim of the defense that it was an error of the
lower court to have taken it into consideration in formulating the findings of
its judgment. Not so with respect to the testimony of the other witnesses.
Roman Bagabay, one of the persons present at said gathering, testified that
he saw Juan Quianzon apply a firebrand to the neck of Andres Aribuabo who
shortly afterwards went toward the place where the witness and the other
guests were gathered, telling that he was wounded and was going to die
and naming Juan Quianzon as the person who wounded him. He also
testified that Juan Quianzon, upon being asked immediately by him about
the incident, admitted to him attacked Aribuabo with a bamboo spit.
Gregorio Dumalao, a barrio lieutenant, who, upon being informed of the
incident, forthwith conducted an investigation, questioned Aribuabo and
the latter told him that it was the accused who had wounded him. He
likewise questioned the accused and the latter, in turn, stated that he had
wounded the deceased with a bamboo spit. Upon being brought before
Juan Llaguno, chief of police of Paoay, for questioning, Quianzon confessed
to Llaguno that he had applied a firebrand to Aribuabo's neck and had later
wounded him with a bamboo spit. Before the chief of police could put this
confession of Quianzon in writing, the later retracted, denying that he had
wounded Aribuabo, for which reason in the affidavit Exhibit B the fact of
having applied a firebrand to Aribuabo's neck appears admitted by
Quianzon but not of having wounded the deceased with a bamboo spit.
The disinterestedness of these three witnesses for the prosecution,
Bagabay, Dumalo and Llaguno, is not questioned by the defense. Neither
the accused, in his testimony, nor his counsel, in the brief filed by him in this
court, was able to assign any unlawful, corrupt or wicked motive that might
have actuated them to testify falsely in this case and knowingly bring about
the imprisonment of an innocent person. Bagabay is not even a relative of
the deceased. Dumlao, the barrio lieutenant, is a nephew of the accused.
Llaguno, chief of police of Paoay, is an officer of the law whose intervention
of this case was purely in compliance with his official duties. All the
appellant has been able to state in his brief to question the credibility of
these witnesses is that they were contradicted by Simeon Cacpal, the other
witness for the prosecution, who testified that he had not seen them speak
neither to Aribuabo nor to Quianzon in the afternoon of the crime. But the
position of the defense in invoking Simeon Cacpal's testimony for the
purpose of discrediting the other witnesses for the prosecution is
untenable, after having vigorously impeached said testimony, branding it as
improbable, incongruent and contradictory. If Cacpal is a false witness —
and the court believes this claim of the defense as true — , none of his
43
statements may be taken into account or should exert any influence in the
consideration of the other evidence in the case.
After discharging testimony of Simeon Cacpal, the evidence presented by
the prosecution relative to the appellant's criminal liability for the death of
Andres Aribuabo, briefly consists, first, in the victim's statement
immediately after receiving the wound, naming the accused as the author of
the aggression, and the admission forthwith made by the accused that he
had applied a firebrand to Aribuabo's neck and had wounded him, besides,
with a bamboo spit. Both statements are competent evidence in the law,
admissible as a part of the res gestae (section 279 and 298, No. 7, of the
Code of Civil Procedure; U.S. vs. Macuti, 26 Phil., 170; People vs. Portento
and Portento, 48 Phil., 971). Second, in the extrajudicial confession of the
accused to the barrio lieutenant, Dumlao, and later to the chief of police
Llaguno, in the same afternoon of the crime, that he was the author of
Aribuabo's wound and that he had inflicted it by means of a bamboo spit.
Inasmuch as this confession, although extrajudicial, is strongly corroborated
and appears to have been made by the accused freely and voluntarily, it
constitutes evidence against him relative to his liability as author of the
crime charged (U.S. vs. so Fo, 23 Phil., 379; People vs. Cabrera, 43 Phil., 64,
82; U.S. vs. Jamino, 3 P.R.A., 52; Francisco's Quizzer on Evidence).
The defense of the accused consisted simply in denying that he had
wounded the deceased and that he had confessed his guilt to the witnesses
Bagabay, Dumlao and Llaguno. But such denial cannot prevail against the
adverse testimony of these three veracious and disinterested witnesses, all
the more because neither the accused nor any other witness for the
defense has stated or insinuated that another person, not the accused,
might be the author of the wound which resulted in Aribuabo's death, and
because it is admitted by the defense that it was the accused, whom
Aribuabo had been pestering with request for food, who attacked the latter,
burning his neck with a firebrand, afetr which Aribuaboappeared wounded
in the abdomen, without the accused and the witnesses for the defense
explaining how and by whom the aggression had been made.
It is contended by the defense that even granting that it was the accused
who inflicted the wound which resulted in Aribuabo's death, he should not
be convicted of homicide but only of serious physical injuries because said
wound was not necessarily fatal and the deceased would have survived it
had he not twice removed the drainage which Dr. Mendoza had placed to
control or isolate the infection. This contention is without merit. According
to the physician who examined whether he could survive or not." It was a
wound in the abdomen which occasionally results in traumatic peritonitis.
The infection was cause by the fecal matter from the large intestine which
has been perforated. The possibility, admitted by said physician that the
patient might have survived said wound had he not removed the drainage,
does not mean that the act of the patient was the real cause of his death.
Even without said act the fatal consequence could have followed, and the
fact that the patient had so acted in a paroxysm of pain does not alter the
juridical consequences of the punishable act of the accused.
One who inflicts an injury on another is deemed by the law to be guilty of
homicide if the injury contributes mediately or immediately to the death of
such other. The fact that the other causes contribute to the death does not
relieve the actor of responsibility. . . . (13 R. C.L., 748.)
Furthermore, it does not appear that the patient, in removing the drainage,
had acted voluntarily and with the knowledge that he was performing an act
prejudicial to his health, inasmuch as self-preservation is the strongest
instinct in living beings. It much be assumed, therefore, that he
unconsciously did so due to his pathological condition and to his state of
nervousness and restlessness on account of the horrible physical pain
caused by the wound, aggravated by the contract of the drainage tube with
the inflammed peritoneum. "When the peritonitis is due to traumatism, or
to a perforation of the stomach, intestine or gall-bladder, etc., it is indicated
by violent shivering and pain first localized at a point in the abdomen,
extending later to the entire abdominal wall; acute intolerable pain, which is
aggravated by the slightest movement, becoming unbearable upon contact
with the hand, a rag, or the bedclothes. The pain is continuous but it gives
frequent paroxysms. The abdomen is swollen, tense. Vomittings of the
greenish matter, which are very annoying and terribly painful, take from the
beginning and continue while the disease lasts." (XVI Spanish-America
Encyclopaedic Dictionary, 176; see also XXI Encyclopaedia Britannica, 1911
ed., 171.) If to this is added the fact that the victim in this case was mentally
deranged, according to the defense itself, it becomes more evident that the
accused is wrong in imputing the natural consequences of his criminal act to
an act of his victim.
The question herein raised by the appellant has already been finally settled
by jurisprudence. The Supreme Court of Spain, in a decision of April 3, 1879,
said in the case similar to the present, the following: "Inasmuch as a man is
responsible for the consequences of his act — and in this case the physical
condition and temperament of the offended party nowise lessen the evil,
the seriousness whereof is to be judged, not by the violence of the means
44
employed, but by the result actually produced; and as the wound which the
appellant inflicted upon the deceased was the cause which determined his
death, without his being able to counteract its effects, it is evident that the
act in question should be qualified as homicide, etc."
In the case of People vs. Almonte (56 Phil., 54), the abdominal wound was
less serious than that received by Aribuabo in this case, as it was not
penetrating, merely involving the muscular tissue. In said case the death of
the victim was due to a secondary hemorrhage produced twenty-four hours
after the wound had been inflicted, because of the "bodily movements of
the patient, who was in a state of nervousness, sitting up in bed, getting up
and pacing about the room, as as a consequence of which he internal
vessels, already congested because of the wound, bled, and the hemorrhage
thus produced caused his death." The court in deciding the question stated
that "when a person dies in consequence of an internal hemorrhage
brought on by moving about against the doctor's orders, not because of
carelessness or a desire to increase the criminal liability of his assailant, but
because of his nervous condition due to the wound inflicted by said
assailant, the crime is homicide and not merely slight physical injuries,
simply because the doctor was of the opinion that the wound might have
healed in seven days."
The grounds for this rule of jurisprudence are correctly set forth in 13 R.C.L.,
751, as follows:
While the courts may have vacilated from time to time it may be taken to be
settled rule of the common law that on who inflicts an injury on another will
be held responsible for his death, although it may appear that the deceased
might have recovered if he had taken proper care of himself, or submitted
to a surgical operation, or that unskilled or improper treatment aggravated
the wound and contributed to the death, or that death was immediately
caused by a surgical operation rendered necessary by the condition of the
wound. The principle on which this rule is founded is one of universal
application, and lies at the foundation of the criminal jurisprudence. It is,
that every person is to be held to contemplate and to be responsible for the
natural consequences of his own acts. If a person inflicts a wound with a
deadly weapon in such a manner as to put life in jeopardy, and death
follows as a consequence of this felonious and wicked act, it does not alter
its nature or diminish its criminality to prove that other causes co-operated
in producing the fatal result. Indeed, it may be said that neglect of the
wound or its unskillful and improper treatment, which are of themselves
consequences of the criminal act, which might naturally follow in any case,
must in law be deemed to have been among those which were in
contemplation of the guilty party, and for which he is to be held responsible.
But, however, this may be, the rule surely seems to have its foundation in a
wise and practical policy. A different doctrine would tend to give immunity
to crime and to take away from human life a salutary and essential
safeguard. Amid the conflicting theories of the medical men, and the
uncertainties attendant upon the treatment of bodily ailments and injuries,
it would be easy in many cases of homicide to raise a doubt as to the
immediate cause of death, and thereby to open a wide door by which
persons guilty of the highest crime might escape conviction and
punishment.
Assuming that we should disregard Simeon Cacpal's testimony, there is no
evidence of record that the crime charged was committed by means of the
knife, Exhibit A, and we only have the extrajudicial admission of the accused
that he had committed it by means of a bamboo spit with which the wound
of the deceased might have been caused because, according to the
physician who testified in this case, it was produced by a "sharp and
penetrating" instrument.
Inasmuch as the mitigating circumstances of lack of instruction and of
intention to commit so grave a wrong as the committed should be taken
into consideration in favor of the appellant, without any aggravating
circumstances adverse to him, we modify the appealed judgment by
sentencing him to an indeterminate penalty with a minimum of four years
of prision correccional and a maximum of a eight years of prision mayor,
affirming it in all other respect, with cost to said appellant.
45
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 72964 January 7, 1988
FILOMENO URBANO, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate Appellate
Court which affirmed the decision of the then Circuit Criminal Court of
Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable
doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner
Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian,
Pangasinan located at about 100 meters from the tobacco seedbed of
Marcelo Javier. He found the place where he stored his palay flooded with
water coming from the irrigation canal nearby which had overflowed.
Urbano went to the elevated portion of the canal to see what happened and
there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them
who was responsible for the opening of the irrigation canal and Javier
admitted that he was the one. Urbano then got angry and demanded that
Javier pay for his soaked palay. A quarrel between them ensued. Urbano
unsheathed his bolo (about 2 feet long, including the handle, by 2 inches
wide) and hacked Javier hitting him on the right palm of his hand, which was
used in parrying the bolo hack. Javier who was then unarmed ran away from
Urbano but was overtaken by Urbano who hacked him again hitting Javier
on the left leg with the back portion of said bolo, causing a swelling on said
leg. When Urbano tried to hack and inflict further injury, his daughter
embraced and prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought
Javier to his house about 50 meters away from where the incident
happened. Emilio then went to the house of Barangay Captain Menardo
Soliven but not finding him there, Emilio looked for barrio councilman Felipe
Solis instead. Upon the advice of Solis, the Erfes together with Javier went to
the police station of San Fabian to report the incident. As suggested by
Corporal Torio, Javier was brought to a physician. The group went to Dr.
Guillermo Padilla, rural health physician of San Fabian, who did not attend
to Javier but instead suggested that they go to Dr. Mario Meneses because
Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to
Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla
issued a medico-legal certificate (Exhibit "C" dated September 28, 1981)
which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20 years
of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on
October 23, 1980 and found the following:
1 -Incised wound 2 inches in length at the upper portion of the lesser palmar
prominence, right.
As to my observation the incapacitation is from (7-9) days period. This
wound was presented to me only for medico-legal examination, as it was
already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to
settle their differences. Urbano promised to pay P700.00 for the medical
expenses of Javier. Hence, on October 27, 1980, the two accompanied by
Solis appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit
A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties
appeared before this Station accompanied by brgy. councilman Felipe Solis
and settled their case amicably, for they are neighbors and close relatives to
each other. Marcelo Javier accepted and granted forgiveness to Filomeno
Urbano who shoulder (sic) all the expenses in his medical treatment, and
promising to him and to this Office that this will never be repeated anymore
and not to harbour any grudge against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3,
1980, the additional P300.00 was given to Javier at Urbano's house in the
presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
Nazareth General Hospital in a very serious condition. When admitted to
the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo
Exconde who personally attended to Javier found that the latter's serious
46
condition was caused by tetanus toxin. He noticed the presence of a healing
wound in Javier's palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The
medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
tion of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscita-
tion and cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by rela-
tives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with
the crime of homicide before the then Circuit Criminal Court of Dagupan
City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as
minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the
law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of
P12,000.00 without subsidiary imprisonment in case of insolvency, and to
pay the costs. He was ordered confined at the New Bilibid Prison, in
Muntinlupa, Rizal upon finality of the decision, in view of the nature of his
penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano
on appeal but raised the award of indemnity to the heirs of the deceased to
P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The
motion for new trial was based on an affidavit of Barangay Captain Menardo
Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,
Pangasinan, and up to the present having been re-elected to such position
in the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a typhoon
that swept Pangasinan and other places of Central Luzon including San
Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the Bued irrigation
dam which irrigates the ricefields of San Fabian were closed and/or
controlled so much so that water and its flow to the canals and ditches were
regulated and reduced;
That due to the locking of the sluice or control gates of the dam leading to
the canals and ditches which will bring water to the ricefields, the water in
said canals and ditches became shallow which was suitable for catching
mudfishes;
That after the storm, I conducted a personal survey in the area affected,
with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the late
Marcelo Javier catching fish in the shallow irrigation canals with some
companions;
That few days there after,or on November l5, l980, I came to know that said
Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code
which provides that "Criminal liability shall be incurred: (1) By any person
committing a felony (delito) although the wrongful act done be different
from that which he intended ..." Pursuant to this provision "an accused is
criminally responsible for acts committed by him in violation of law and for
all the natural and logical consequences resulting therefrom." (People v.
Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who
used a bolo as a result of which Javier suffered a 2-inch incised wound on his
right palm; that on November 14, 1981 which was the 22nd day after the
incident, Javier was rushed to the hospital in a very serious condition and
that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was
the natural and logical consequence of Urbano's unlawful act. Hence, he
was declared responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which supervened
from the time the deceased was wounded to the time of his death, which
covers a period of 23 days does not deserve serious consideration. True,
that the deceased did not die right away from his wound, but the cause of
47
his death was due to said wound which was inflicted by the appellant. Said
wound which was in the process of healing got infected with tetanus which
ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that the
victim suffered lockjaw because of the infection of the wound with tetanus.
And there is no other way by which he could be infected with tetanus
except through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
Consequently, the proximate cause of the victim's death was the wound
which got infected with tetanus. And the settled rule in this jurisdiction is
that an accused is liable for all the consequences of his unlawful act. (Article
4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
418).
Appellant's allegation that the proximate cause of the victim's death was
due to his own negligence in going back to work without his wound being
properly healed, and lately, that he went to catch fish in dirty irrigation
canals in the first week of November, 1980, is an afterthought, and a
desperate attempt by appellant to wiggle out of the predicament he found
himself in. If the wound had not yet healed, it is impossible to conceive that
the deceased would be reckless enough to work with a disabled hand. (pp.
20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death
of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses
found no tetanus in the injury, and that Javier got infected with tetanus
when after two weeks he returned to his farm and tended his tobacco
plants with his bare hands exposing the wound to harmful elements like
tetanus germs.
The evidence on record does not clearly show that the wound inflicted by
Urbano was infected with tetanus at the time of the infliction of the wound.
The evidence merely confirms that the wound, which was already healing at
the time Javier suffered the symptoms of the fatal ailment, somehow got
infected with tetanus However, as to when the wound was infected is not
clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume 38, pages
695-696 of American Jurisprudence, cited by plaintiffs-appellants in their
brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the
result would not have occurred."And more comprehensively, "the
proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural
and continuous chain of events, each having a close causal connection with
its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first
acted, under such circumstances that the person responsible for the first
event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death which
would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days. However,
over 80 percent of patients become symptomatic within 14 days. A short
incubation period indicates severe disease, and when symptoms occur within
2 or 3 days of injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability, and
headache are encountered occasionally, but the commonest presenting
complaints are pain and stiffness in the jaw, abdomen, or back and difficulty
swallowing. As the progresses, stiffness gives way to rigidity, and patients
often complain of difficulty opening their mouths. In fact, trismus in the
commonest manifestation of tetanus and is responsible for the familiar
descriptive name of lockjaw. As more muscles are involved, rigidity becomes
generalized, and sustained contractions called risus sardonicus. The
intensity and sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop in the region
of the injury. In the vast majority, however, most muscles are involved to
some degree, and the signs and symptoms encountered depend upon the
major muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom, an
interval referred to as the onset time. As in the case of the incubation
period, a short onset time is associated with a poor prognosis. Spasms are
caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction
48
of muscles and their antagonists. Spasms may be both painful and
dangerous. As the disease progresses, minimal or inapparent stimuli
produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may then
lead to irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days and
an onset time of more than 6 days. Trismus is usually present, but dysphagia
is absent and generalized spasms are brief and mild. Moderately severe
tetanus has a somewhat shorter incubation period and onset time; trismus
is marked, dysphagia and generalized rigidity are present, but ventilation
remains adequate even during spasms. The criteria for severe tetanus
include a short incubation time, and an onset time of 72 hrs., or less, severe
trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition,
pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's
body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm
when he parried the bolo which Urbano used in hacking him. This incident
took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild cause of tetanus because
the symptoms of tetanus appeared on the 22nd day after the hacking
incident or more than 14 days after the infliction of the wound. Therefore,
the onset time should have been more than six days. Javier, however, died
on the second day from the onset time. The more credible conclusion is that
at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound
could have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his wound could
have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before
he died.
The rule is that the death of the victim must be the direct, natural, and
logical consequence of the wounds inflicted upon him by the accused.
(People v. Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the wound by
tetanus was an efficient intervening cause later or between the time Javier
was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the proximate cause of Javier's
death with which the petitioner had nothing to do. As we ruled in Manila
Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such
remote cause did nothing more than furnish the condition or give rise to the
occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no danger existed
in the condition except because of the independent cause, such condition
was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances which result in injury
because of the prior defective condition, such subsequent act or condition is
the proximate cause." (45 C.J. pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of
criminal liability. At the very least, the records show he is guilty of inflicting
slight physical injuries. However, the petitioner's criminal liability in this
respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while Urbano
defrayed the medical expenses of Javier. This settlement of minor offenses
is allowed under the express provisions of Presidential Decree G.R. No.
1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and
remote cause is limited to the criminal aspects of this rather unusual case. It
does not necessarily follow that the petitioner is also free of civil liability.
The well-settled doctrine is that a person, while not criminally liable, may
still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria,
et al. (G.R. No. 74041, July 29, 1987), we said:
xxx xxx xxx
49
... While the guilt of the accused in a criminal prosecution must be close up an inexhaustible source of injustice-a cause for disillusionment on
established beyond reasonable doubt, only a preponderance of evidence is the part of the innumerable persons injured or wronged."
required in a civil action for damages. (Article 29, Civil Code). The judgment The respondent court increased the P12,000.00 indemnification imposed by
of acquittal extinguishes the civil liability of the accused only when it the trial court to P30,000.00. However, since the indemnification was based
includes a declaration that the facts from which the civil liability might arise solely on the finding of guilt beyond reasonable doubt in the homicide case,
did not exist. (Padilla v. Court of Appeals, 129 SCRA 559). the civil liability of the petitioner was not thoroughly examined. This aspect
The reason for the provisions of article 29 of the Civil Code, which provides of the case calls for fuller development if the heirs of the victim are so
that the acquittal of the accused on the ground that his guilt has not been minded.
proved beyond reasonable doubt does not necessarily exempt him from civil WHEREFORE, the instant petition is hereby GRANTED. The questioned
liability for the same act or omission, has been explained by the Code decision of the then Intermediate Appellate Court, now Court of Appeals, is
Commission as follows: REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of
The old rule that the acquittal of the accused in a criminal case also releases homicide. Costs de oficio.
him from civil liability is one of the most serious flaws in the Philippine legal SO ORDERED.
system. It has given use to numberless instances of miscarriage of justice,
where the acquittal was due to a reasonable doubt in the mind of the court
as to the guilt of the accused. The reasoning followed is that inasmuch as
the civil responsibility is derived from the criminal offense, when the latter
is not proved, civil liability cannot be demanded.
This is one of those causes where confused thinking leads to unfortunate
and deplorable consequences. Such reasoning fails to draw a clear line of
demarcation between criminal liability and civil responsibility, and to
determine the logical result of the distinction. The two liabilities are
separate and distinct from each other. One affects the social order and the
other, private rights. One is for the punishment or correction of the
offender while the other is for reparation of damages suffered by the
aggrieved party. The two responsibilities are so different from each other
that article 1813 of the present (Spanish) Civil Code reads thus: "There may
be a compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be proved
beyond reasonable doubt. But for the purpose of indemnity the complaining
party, why should the offense also be proved beyond reasonable doubt? Is
not the invasion or violation of every private right to be proved only by a
preponderance of evidence? Is the right of the aggrieved person any less
private because the wrongful act is also punishable by the criminal law?
"For these reasons, the Commission recommends the adoption of the
reform under discussion. It will correct a serious defect in our law. It will

50
Republic of the Philippines of reclusion perpetua and to pay the heirs of Danilo Cruz (Cruz) the sum
Supreme Court of P50,000.00 as civil indemnity, plus the costs of suit.
Manila
On June 21, 2002, an Information[3] was filed against Villacorta charging him
FIRST DIVISION with the crime of murder, as follows:

That on or about 23rd day of January 2002, in Navotas, Metro Manila, and
PEOPLE OF THE PHILIPPINES, G.R. No. 186412 within the jurisdiction of this Honorable Court, the above-named accused,
Plaintiff-Appellee, armed with a sharpened bamboo stick, with intent to kill, treachery and
Present: evident premeditation, did then and there willfully, unlawfully and
CORONA, C.J., feloniously attack, assault and stab with the said weapon one DANILO
Chairperson, SALVADOR CRUZ, thereby inflicting upon the victim serious wounds which
LEONARDO-DE CASTRO, caused his immediate death.
BERSAMIN,
- versus - DEL CASTILLO, and
VILLARAMA, JR., JJ. When arraigned on September 9, 2002, Villacorta pleaded not guilty.[4]

Promulgated: During trial, the prosecution presented as witnesses Cristina Mendeja

(Mendeja) and Dr. Domingo Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was tending her sari-
ORLITO VILLACORTA, September 7, 2011 saristore located at C-4 Road, Bagumbayan, Navotas. Both Cruz and
Accused-Appellant. Villacorta were regular customers at Mendejas store. At around two oclock
in the morning, while Cruz was ordering bread at Mendejas store, Villacorta
suddenly appeared and, without uttering a word, stabbed Cruz on the left
side of Cruzs body using a sharpened bamboo stick. The bamboo stick broke
x--------------------------------------------------x and was left in Cruzs body. Immediately after the stabbing incident,
Villacorta fled. Mendeja gave chase but failed to catch Villacorta. When
Mendeja returned to her store, she saw her neighbor Aron removing the
DECISION broken bamboo stick from Cruzs body.[5] Mendeja and Aron then brought
Cruz to Tondo Medical Center.[6]

LEONARDO-DE CASTRO, J.:
On appeal is the Decision[1] dated July 30, 2008 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 02550, which affirmed the Decision[2] dated September
22, 2006 of the Regional Trial Court (RTC), Branch 170, of Malabon, in
Criminal Case No. 27039-MN, finding accused-appellant Orlito Villacorta
(Villacorta) guilty of murder, and sentencing him to suffer the penalty
Dr. Belandres was Head of the Tetanus Department at the San Lazaro
Hospital. When Cruz sustained the stab wound on January 23, 2002, he was
taken to the Tondo Medical Center, where he was treated as an out-
patient. Cruz was only brought to the San Lazaro Hospital on February 14,
2002, where he died the following day, on February 15, 2002. While
admitting that he did not personally treat Cruz, Dr. Belandres was able to
determine, using Cruzs medical chart and diagnosis, that Cruz died of

51
tetanus infection secondary to stab wound.[7] Dr. Belandres specifically
described the cause of Cruzs death in the following manner:
The wound was exposed x x spurs concerted, the patient developed
difficulty of opening the mouth, spastivity of the body and abdominal pain
and the cause of death is hypoxic encephalopathy neuro transmitted due to
upper G.I. bleeding x x x. Diagnosed of Tetanus, Stage III.[8]
The prosecution also intended to present Dr. Deverni Matias (Dr. Matias),
who attended to Cruz at the San Lazaro Hospital, but the prosecution and
defense agreed to dispense with Dr. Matias testimony based on the
stipulation that it would only corroborate Dr. Belandres testimony on Cruz
dying of tetanus.
For its part, the defense presented Villacorta himself, who denied stabbing
Cruz.Villacorta recounted that he was on his way home from work at around
two oclock in the morning of January 21, 2002. Upon arriving home,
Villacorta drank coffee then went outside to buy cigarettes at a nearby
store. When Villacorta was about to leave the store, Cruz put his arm
around Villacortas shoulder. This prompted Villacorta to box Cruz, after
which, Villacorta went home. Villacorta did not notice that Cruz got
hurt. Villacorta only found out about Cruzs death upon his arrest on July 31,
2002.[9]
On September 22, 2006, the RTC rendered a Decision finding Villacorta
guilty of murder, qualified by treachery. The dispositive portion of said
Decision reads:
WHEREFORE, in the light of the foregoing, the Court finds accused Orlito
Villacorta guilty beyond reasonable doubt of the crime of Murder and is
hereby sentenced to suffer the penalty of reclusion perpetua and to pay the
heirs of Danilo Cruz the sum of P50,000.00 as civil indemnity for the death
of said victim plus the costs of suit.[10]
Villacorta, through his counsel from the Public Attorneys Office (PAO), filed
a notice of appeal to assail his conviction by the RTC.[11] The Court of
Appeals directed the PAO to file Villacortas brief, within thirty days from
receipt of notice.
Villacorta filed his Appellants Brief[12] on May 30, 2007; while the People,
through the Office of the Solicitor General (OSG), filed its Appellee's
Brief[13] on October 2, 2007.
On July 30, 2008, the Court of Appeals promulgated its Decision affirming in
toto the RTC judgment of conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant appeal.
Villacorta manifested that he would no longer file a supplemental brief, as
he was adopting the Appellant's Brief he filed before the Court of
Appeals.[14] The OSG, likewise, manifested that it was no longer filing a
supplemental brief. [15]
In his Appellants Brief, Villacorta raised the following assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE
COULD ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.[16]
Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing
incident. It was Mendeja who positively identified Villacorta as the one who
52
stabbed Cruz in the early morning of January 23, 2002. Villacorta asserts
that Mendejas account of the stabbing incident is replete with
inconsistencies and incredulities, and is contrary to normal human
experience, such as: (1) instead of shouting or calling for help when
Villacorta allegedly stabbed Cruz, Mendeja attempted to run after and catch
Villacorta; (2) while, by Mendejas own account, there were other people
who witnessed the stabbing and could have chased after Villacorta, yet,
oddly, only Mendeja did; (3) if Cruz was stabbed so swiftly and suddenly as
Mendeja described, then it would have been physically improbable for
Mendeja to have vividly recognized the perpetrator, who immediately ran
away after the stabbing; (4) after the stabbing, both Villacorta and Cruz ran
in opposite directions; and (5) Mendeja had said that the bamboo stick, the
alleged murder weapon, was left at her store, although she had also stated
that the said bamboo stick was left embedded in Cruzs body. Villacorta
maintains that the aforementioned inconsistencies are neither trivial nor
inconsequential, and should engender some doubt as to his guilt.
We are not persuaded.
To begin with, it is fundamental that the determination by the trial court of
the credibility of witnesses, when affirmed by the appellate court, is
accorded full weight and credit as well as great respect, if not conclusive
effect. Such determination made by the trial court proceeds from its first-
hand opportunity to observe the demeanor of the witnesses, their conduct
and attitude under grilling examination, thereby placing the trial court in the
unique position to assess the witnesses' credibility and to appreciate their
truthfulness, honesty and candor.[17]
In this case, both the RTC and the Court of Appeals gave full faith and
credence to the testimony of prosecution witness Mendeja. The Court of
Appeals rejected Villacortas attempts to impugn Mendejas testimony, thus:
Appellants reason for concluding that witness Mendejas testimony is
incredible because she did not shout or call for help and instead run after
the appellant, fails to impress the Court because persons who witness
crimes react in different ways.
x x x the makings of a human mind are unpredictable; people react
differently and there is no standard form of behavior when one is
confronted by a shocking incident.
Equally lacking in merit is appellants second reason which is, other persons
could have run after the appellant after the stabbing incident. As explained
by witness Mendeja, the other person whom she identified as Aron was left
to assist the appellant who was wounded. Further, the stabbing occurred
at 2:00 oclock in the morning, a time when persons are expected to be
asleep in their house, not roaming the streets.
His [Villacortas] other argument that the swiftness of the stabbing incident
rendered impossible or incredible the identification of the assailant cannot
likewise prosper in view of his admission that he was in the store of witness
Mendeja on January 23, 2002 at 2:00 oclock in the morning and that he
assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of record cannot
support appellants argument. Appellant and the victim were known to
witness Mendeja, both being her friends and regular customers. There was
light in front of the store.An opening in the store measuring 1 and meters
enables the person inside to see persons outside, particularly those buying
articles from the store. The victim was in front of the store buying bread
when attacked. Further, immediately after the stabbing, witness Mendeja
ran after the appellant giving her additional opportunity to identify the
malefactor. Thus, authorship of the attack can be credibly ascertained.[18]
Moreover, Villacorta was unable to present any reason or motivation for
Mendeja to fabricate such a lie and falsely accuse Villacorta of stabbing Cruz
on January 23, 2002. We have ruled time and again that where the
prosecution eyewitness was familiar with both the victim and accused, and
where the locus criminis afforded good visibility, and where no improper
motive can be attributed to the witness for testifying against the accused,
then her version of the story deserves much weight.[19]
The purported inconsistencies in Mendejas testimony pointed out by
Villacorta are on matters that have no bearing on the fundamental fact
which Mendeja testified on: that Villacorta stabbed Cruz in the early
morning of January 23, 2002, right in front of Mendejas store.
53

In the face of Mendejas positive identification of Villacorta as Cruzs stabber,
Villacorta could only muster an uncorroborated denial. Denial, like alibi, as
an exonerating justification, is inherently weak and if uncorroborated,
regresses to blatant impotence. Like alibi, it also constitutes self-serving
negative evidence which cannot be accorded greater evidentiary weight
than the declaration of credible witnesses who testify on affirmative
matters.[20]
Hence, we do not deviate from the foregoing factual findings of the RTC, as
affirmed by the Court of Appeals.
Nevertheless, there is merit in the argument proffered by Villacorta that in
the event he is found to have indeed stabbed Cruz, he should only be held
liable for slight physical injuries for the stab wound he inflicted upon
Cruz. The proximate cause of Cruzs death is the tetanus infection, and not
the stab wound.
Proximate cause has been defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred.[21]
In this case, immediately after he was stabbed by Villacorta in the early
morning of January 23, 2002, Cruz was rushed to and treated as an out-
patient at the Tondo Medical Center. On February 14, 2002, Cruz was
admitted to the San Lazaro Hospital for symptoms of severe tetanus
infection, where he died the following day, on February 15, 2002. The
prosecution did not present evidence of the emergency medical treatment
Cruz received at the Tondo Medical Center, subsequent visits by Cruz to
Tondo Medical Center or any other hospital for follow-up medical treatment
of his stab wound, or Cruzs activities between January 23 to February 14,
2002.
In Urbano v. Intermediate Appellate Court,[22] the Court was confronted with
a case of very similar factual background as the one at bar. During an
altercation on October 23, 1980, Urbano hacked Javier with a bolo, inflicting
an incised wound on Javiers hand. Javier was treated by Dr.
Meneses. On November 14, 1980, Javier was rushed to the hospital with
lockjaw and convulsions. Dr. Exconde, who attended to Javier, found that
Javiers serious condition was caused by tetanus infection. The next day,
on November 15, 1980, Javier died. An Information was filed against Urbano
for homicide. Both the Circuit Criminal Court and the Intermediate Appellate
Court found Urbano guilty of homicide, because Javier's death was the
natural and logical consequence of Urbano's unlawful act. Urbano appealed
before this Court, arguing that Javiers own negligence was the proximate
cause of his death. Urbano alleged that when Dr. Meneses examined Javiers
wound, he did not find any tetanus infection and that Javier could have
acquired the tetanus germs when he returned to work on his farm only two
(2) weeks after sustaining his injury. The Court granted Urbanos appeal.
We quote extensively from the ratiocination of the Court in Urbano:
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death which
would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days. However,
over 80 percent of patients become symptomatic within 14 days. A short
incubation period indicates severe disease, and when symptoms occur within
2 or 3 days of injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability, and
headache are encountered occasionally, but the commonest presenting
complaints are pain and stiffness in the jaw, abdomen, or back and difficulty
swallowing. As the disease progresses, stiffness gives way to rigidity, and
patients often complain of difficulty opening their mouths. In fact, trismus is
the commonest manifestation of tetanus and is responsible for the familiar
descriptive name of lockjaw. As more muscles are involved, rigidity becomes
generalized, and sustained contractions called risus sardonicus. The
intensity and sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop in the region
of the injury. In the vast majority, however, most muscles are involved to
some degree, and the signs and symptoms encountered depend upon the
major muscle groups affected.
54
Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an
interval referred to as the onset time. As in the case of the incubation
period, a short onset time is associated with a poor prognosis. Spasms are
caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction
of muscles and their antagonists. Spasms may be both painful and
dangerous. As the disease progresses, minimal or inapparent stimuli
produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may then
lead to irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days and
an onset time of more than 6 days. Trismus is usually present, but dysphagia
is absent and generalized spasms are brief and mild. Moderately severe
tetanus has a somewhat shorter incubation period and onset time; trismus
is marked, dysphagia and generalized rigidity are present, but ventilation
remains adequate even during spasms. The criteria for severe tetanus
include a short incubation time, and an onset time of 72 hrs., or less, severe
trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition,
pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's
body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm
when he parried the bolo which Urbano used in hacking him. This incident
took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild case of tetanus because
the symptoms of tetanus appeared on the 22nd day after the hacking
incident or more than 14 days after the infliction of the wound. Therefore,
the onset time should have been more than six days. Javier, however, died
on the second day from the onset time. The more credible conclusion is that
at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound
could have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his wound could
have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before
he died.[23]
The incubation period for tetanus infection and the length of time between
the hacking incident and the manifestation of severe tetanus infection
created doubts in the mind of the Court that Javier acquired the severe
tetanus infection from the hacking incident. We explained in Urbano that:
The rule is that the death of the victim must be the direct, natural, and
logical consequence of the wounds inflicted upon him by the accused.
(People v. Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the wound by
tetanus was an efficient intervening cause later or between the time Javier
was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the proximate cause of Javier's
death with which the petitioner had nothing to do. As we ruled in Manila
Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the basis of an action if such
remote cause did nothing more than furnish the condition or give rise to the
occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no danger existed
in the condition except because of the independent cause, such condition
was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances, which result in injury
55
because of the prior defective condition, such subsequent act or condition is
the proximate cause." (45 C.J. pp. 931-932). (at p. 125)[24]
We face the very same doubts in the instant case that compel us to set aside
the conviction of Villacorta for murder. There had been an interval of 22
days between the date of the stabbing and the date when Cruz was rushed
to San Lazaro Hospital, exhibiting symptoms of severe tetanus infection. If
Cruz acquired severe tetanus infection from the stabbing, then the
symptoms would have appeared a lot sooner than 22 days later. As the
Court noted in Urbano, severe tetanus infection has a short incubation
period, less than 14 days; and those that exhibit symptoms with two to
three days from the injury, have one hundred percent (100%)
mortality.Ultimately, we can only deduce that Cruzs stab wound was merely
the remote cause, and its subsequent infection with tetanus might have
been the proximate cause of Cruz's death. The infection of Cruzs stab
wound by tetanus was an efficient intervening cause later or between the
time Cruz was stabbed to the time of his death.
However, Villacorta is not totally without criminal liability. Villacorta is guilty
of slight physical injuries under Article 266(1) of the Revised Penal Code for
the stab wound he inflicted upon Cruz. Although the charge in the instant
case is for murder, a finding of guilt for the lesser offense of slight physical
injuries may be made considering that the latter offense is necessarily
included in the former since the essential ingredients of slight physical
injuries constitute and form part of those constituting the offense of
murder.[25]
We cannot hold Villacorta criminally liable for attempted or frustrated
murder because the prosecution was not able to establish Villacortas intent
to kill. In fact, the Court of Appeals expressly observed the lack of evidence
to prove such an intent beyond reasonable doubt, to wit:
Appellant stabbed the victim only once using a sharpened bamboo stick,
hitting him on the left side of the body and then immediately fled. The
instrument used is not as lethal as those made of metallic material. The part
of the body hit is not delicate in the sense that instant death can ensue by
reason of a single stab wound. The assault was done only once. Thus, there
is doubt as to whether appellant had an intent to kill the victim, which
should be resolved in favor of the appellant. x x x.[26]
The intent must be proved in a clear and evident manner to exclude every
possible doubt as to the homicidal (or murderous) intent of the
aggressor. The onus probandi lies not on accused-appellant but on the
prosecution. The inference that the intent to kill existed should not be
drawn in the absence of circumstances sufficient to prove this fact beyond
reasonable doubt. When such intent is lacking but wounds were inflicted,
the crime is not frustrated murder but physical injuries only.[27]
Evidence on record shows that Cruz was brought to Tondo Medical Center
for medical treatment immediately after the stabbing incident. Right after
receiving medical treatment, Cruz was then released by the Tondo Medical
Center as an out-patient. There was no other evidence to establish that Cruz
was incapacitated for labor and/or required medical attendance for more
than nine days. Without such evidence, the offense is only slight physical
injuries.[28]
We still appreciate treachery as an aggravating circumstance, it being
sufficiently alleged in the Information and proved during trial.
The Information specified that accused, armed with a sharpened bamboo
stick, with intent to kill, treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault and stab with the
said weapon one DANILO SALVADOR CRUZ x x x.
Treachery exists when an offender commits any of the crimes against
persons, employing means, methods or forms which tend directly or
especially to ensure its execution, without risk to the offender, arising from
the defense that the offended party might make. This definition sets out
what must be shown by evidence to conclude that treachery existed,
namely: (1) the employment of such means of execution as would give the
person attacked no opportunity for self-defense or retaliation; and (2) the
deliberate and conscious adoption of the means of execution. To reiterate,
the essence of qualifying circumstance is the suddenness, surprise and the
lack of expectation that the attack will take place, thus, depriving the victim
of any real opportunity for self-defense while ensuring the commission of
56
the crime without risk to the aggressor.[29] Likewise, even when the victim
was forewarned of the danger to his person, treachery may still be
appreciated since what is decisive is that the execution of the attack made it
impossible for the victim to defend himself or to retaliate.[30]
Both the RTC and the Court of Appeals found that treachery was duly
proven in this case, and we sustain such finding. Cruz, the victim, was
attacked so suddenly, unexpectedly, and without provocation. It was two
oclock in the morning of January 23, 2002, and Cruz, who was out buying
bread at Mendejas store, was unarmed. Cruz had his guard down and was
totally unprepared for an attack on his person. Villacorta suddenly appeared
from nowhere, armed with a sharpened bamboo stick, and without uttering
a word, stabbed Cruz at the left side of his body, then swiftly ran
away. Villacortas treacherous mode of attack left Cruz with no opportunity
at all to defend himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
ART. 266. Slight physical injuries and maltreatment. The crime of slight
physical injuries shall be punished:
compensate for the mental anguish, serious anxiety, and moral shock
suffered by the victim and his family as being a proximate result of the
wrongful act. An award requires no proof of pecuniary loss. Pursuant to
previous jurisprudence, an award of Five Thousand Pesos (P5,000.00) moral
damages is appropriate for less serious, as well as slight physical injuries.[33]
WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-
G.R. CR.-H.C. No. 02550, affirming the Decision dated September 22, 2006
of the Regional Trial Court, Branch 170, of Malabon, in Criminal Case No.
27039-MN, is REVERSED and SET ASIDE. A new judgment is entered finding
Villacorta GUILTY beyond reasonable doubt of the crime of slight physical
injuries, as defined and punished by Article 266 of the Revised Penal Code,
and sentenced to suffer the penalty of thirty (30) days arresto
menor. Considering that Villacorta has been incarcerated well beyond the
period of the penalty herein imposed, the Director of the Bureau of Prisons
is ordered to cause Villacortas immediate release, unless Villacorta is being
lawfully held for another cause, and to inform this Court, within five (5) days
from receipt of this Decision, of the compliance with such order. Villacorta is
ordered to pay the heirs of the late Danilo Cruz moral damages in the sum
of Five Thousand Pesos (P5,000.00).

1. By arresto menor when the offender has inflicted physical injuries which SO ORDERED.
shall incapacitate the offended party from labor from one to nine days, or
shall require medical attendance during the same period.

The penalty of arresto menor spans from one (1) day to thirty (30)
days.[31] The Indeterminate Sentence Law does not apply since said law
excludes from its coverage cases where the penalty imposed does not
exceed one (1) year.[32] With the aggravating circumstance of treachery, we
can sentence Villacorta with imprisonment anywhere within arresto
menor in the maximum period, i.e., twenty-one (21) to thirty (30)
days. Consequently, we impose upon Villacorta a straight sentence of thirty
(30) days of arresto menor; but given that Villacorta has been in jail since
July 31, 2002 until present time, already way beyond his imposed sentence,
we order his immediate release.

Under paragraph (1), Article 2219 of the Civil Code, moral damages may be
recovered in a criminal offense resulting in physical injuries. Moral damages

57
Republic of the Philippines
SUPREME COURT Manila
EN BANC
G.R. No. L-204 May 16, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO CORNEL,
defendant-appellant. Pablo Anzures for appellant. Office of the Assistant
Solicitor General Gianzon and Solicitor Jimenez for appellee.
PARAS, J.: This is an appeal from a judgment of the Court of First Instance of
Albay sentencing the defendant, for the crime of homicide, to an
indeterminate prison term ranging from 8 years and 1 day of prision mayor
to 14 years, 8 months and 1 day of reclusion temporal, with corresponding
accessory penalties, to indemnify the heirs of the deceased, Fabian Burac, in
the sum of P2,000, and to pay the costs. The first feature of appellant's case
as presented by his counsel de oficio, refers to the alleged inadequacy of the
evidence for the prosecution establishing appellant's identity. Trinidad
Coral, however, personally saw (1) the appellant suddenly assault her
deceased husband (Fabian Burac) with a bolo as the latter was descending
the stairs of his house in the Barrio of San Miguel, Municipality of Tabaco,
Province of Albay, at about 6 o'clock in the afternoon of June 8, 1945; (2)
after Fabian Burac (then wounded in the forehead) fell, the appellant threw
a stone which hit Fabian's right clavicle, and (3) the appellant thereafter fled
in the direction of his house. The positive testimony of Trinidad was given
full credit by the trial court, and the latter's advantage of observing and
hearing the witness should not be disregarded particularly where, as in this
case, Trinidad knew the appellant well and the latter merely relies on the
conjecture that Trinidad might have made a mistake in identifying her
husband's assailant, considering the time of the attack. Apart, therefore,
from the testimony of another witness for the government (Caspara
Bendicio) to the effect that when she asked Fabian not long after the
incident in question as to what had happened, Fabian replied that he had
been boloed by the appellant, which testimony (alleged by the appellant to
be inadmissible) was accepted by the trial court under the rule of the res
gestae, there is sufficient proof regarding appellant's identity. Moreover, it
should be remembered that the appellant was prosecuted, though only for
physical injuries, even before Fabian's death which occured several day after
June 8, 1945. Under the third assignment of error, counsel for the appellant
adopts the view that the wound on Fabian's forehead, described by Dr.
Mariano Cruel, a government witness, as "an incised vertIcal wound
extending from a little above the middle of the eyebrows down to the lower
root of the nose," and cutting "the frontal and the nasal bones also," was
produced not by a bolo or any long, sharp-cutting weapon but by an
irregular and hard object with a sharp edge such as a heavy piece of stone
with one or more sharp edges which, when thrown forcibly from a distance,
will necessarily produce, a small apparently "incised" wound and render the
victim unconscious. This contention may be tenable in forensic medicine,
but it is still conjectural and cannot be accepted where a criminal assault is
proved through an eyewitness. Contrary to appellant's pretension, the
death of Fabian Burac is established by the testimony of his wife and
mother-in-law. The certificate of the civil registrar of Tabaco dated August 3,
1945, to the effect that the matter had not been registered in his office,
merely shows that no report was made up to the date mentioned, but it
cannot conclusively negate the fact of Fabian's death. We have no doubt
that Fabian Burac died, as certified by Dr. Mariano Cruel, "of tetanus
secondary to the infected wound." When Fabian last reported for treatment
on June 15, 1945, Dr, Cruel already noticed Fabian's rigid muscles and slight
lockjaw, and this is the very reason why he prescribed anti-tetanic serum,
which, not being then available in the place, was never actually
administered on the patient. Appellant's surmise that Fabian might not have
died of tetanus, because there are other diseases sometimes exhibiting
symptoms of tetanus, cannot prevail against the conclusion of Dr. Cruel who
in fact treated Fabian's wound and saw the manifestations of tetanus. The
appellant must of course be held responsible for the natural consequences
of his unlawful act. (People vs. Borbano, 76 Phil., 702.) Appellant's defense
of alibi — that between 5 p.m. of June 8, 1945 and the morning of June 9,
1945, he was in Tabaco, Albay, — may be worth inquiring into, if Trinidad
Coral (already found to the truthful) was not an eyewitness to appellant's
criminal attack. The motive for the offense is undoubtedly supplied by the
circumstance that Fabian once arrested and threatened the appellant during
the Japanese occupation. The appealed judgment is hereby affirmed, with
costs against the appellant. So ordered.
58
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 171951 August 28, 2009
AMADO ALVARADO GARCIA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
QUISUMBING, J.:
For review on certiorari is the Decision1 dated December 20, 2005 of the
Court of Appeals in CA-G.R.-CR No. 27544 affirming the Decision2 dated
July 2, 2003 of the Regional Trial Court (RTC), Branch 9, Aparri, Cagayan,
which found petitioner Amado Garcia guilty beyond reasonable doubt of
homicide. Contested as well is the appellate court’s Resolution3 dated March
13, 2006 denying petitioner’s Motion for Reconsideration.4
On February 10, 2000, petitioner was charged with murder in an Information
that alleges as follows:
The undersigned, Provincial Prosecutor accuses AMADO GARCIA @
Manding of the crime of Murder, defined and penalized under Article [248] of
the Revised Penal Code, as amended by Republic Act No. 7659, committed
as follows:
That on or about September 29, 1999, in the municipality of Aparri, province
of Cagayan, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with a bottle, with intent to kill, with evident
premeditation and with treachery, did then and there wilfully, unlawfully and
feloniously assault, attack, box, club and maul one Manuel K. Chy, inflicting
upon the latter fatal injuries which caused his death.
CONTRARY TO LAW.5
Upon arraignment, petitioner entered a not guilty plea. Thereafter, trial on the
merits ensued.
The factual antecedents are as follows:
At approximately 11:00 a.m. on September 26, 1999, petitioner, Fidel Foz, Jr.
and Armando Foz had a drinking spree at the apartment unit of Bogie
Tacuboy, which was adjacent to the house of Manuel K. Chy. At around 7:00
p.m., Chy appealed for the group to quiet down as the noise from the videoke
machine was blaring. It was not until Chy requested a second time that the
group acceded. Unknown to Chy, this left petitioner irate and petitioner was
heard to have said in the Ilocano vernacular, "Dayta a Manny napangas
makaala caniac dayta." (This Manny is arrogant, I will lay a hand on him.) 6
On September 28, 1999, the group met again to celebrate the marriage of
Ador Tacuboy not far from Chy’s apartment. Maya Mabbun advised the
group to stop singing lest they be told off again. This further infuriated
petitioner who remarked, "Talaga a napangas ni Manny saan ko a
pagbayagen daytoy," meaning, "This Manny is really arrogant, I will not let
him live long."7
Yet again, at around 12:00 p.m. on September 29, 1999, the group convened
at the house of Foz and Garcia. There, petitioner, Foz, Jr. and Fred Rillon
mused over the drinking session on the 26th and 28th of September and the
confrontation with Chy. Enraged at the memory, petitioner blurted out
"Talaga a napangas dayta a day[t]oy a Manny ikabbut ko ita." (This Manny is
really arrogant, I will finish him off today.)8 Later that afternoon, the group
headed to the store of Adela dela Cruz where they drank until petitioner
proposed that they move to Punta. On their way to Punta, the group passed
by the store of Aurelia Esquibel, Chy’s sister, and there, decided to have
some drinks.
At this juncture, petitioner ordered Esquibel to call on Chy who, incidentally,
was coming out of his house at the time. Upon being summoned, the latter
approached petitioner who suddenly punched him in the face. Chy cried out,
"Bakit mo ako sinuntok hindi ka naman [inaano]?" (Why did you box me[?]
I’m not doing anything to you.)9 But petitioner kept on assaulting him. Foz
attempted to pacify petitioner but was himself hit on the nose while Chy
continued to parry the blows. Petitioner reached for a bottle of beer, and with
it, struck the lower back portion of Chy’s head. Then, Foz shoved Chy
causing the latter to fall.
When Chy found an opportunity to escape, he ran towards his house and
phoned his wife Josefina to call the police. Chy told Josefina about the
mauling and complained of difficulty in breathing. Upon reaching Chy’s
house, the policemen knocked five times but nobody answered. Josefina
arrived minutes later, unlocked the door and found Chy lying unconscious on
59
the kitchen floor, salivating. He was pronounced dead on arrival at the
hospital. The autopsy confirmed that Chy died of myocardial infarction.
After trial in due course, the RTC of Aparri, Cagayan (Branch 9) found
petitioner guilty beyond reasonable doubt of homicide. The dispositive
portion of the RTC decision reads:
WHEREFORE, the Court renders judgment:
1) Finding AMADO GARCIA guilty beyond reasonable doubt for the
crime of HOMICIDE defined and penalized by Article 249 of the
Revised Penal Code and after applying in his favor the provisions of
the Indeterminate Sentence Law, hereby sentences him to suffer an
indeterminate prison term of TEN (10) YEARS OF PRISION
MAYOR, as minimum, to FOURTEEN (14) YEARS and EIGHT (8)
MONTHS of RECLUSION TEMPORAL as maximum;
2) Ordering him to pay the heirs of Manuel Chy the amount of FIFTY
THOUSAND (₱50,000.00) PESOS, as death indemnity; TWO
HUNDRED THOUSAND (₱200,000.00) PESOS, representing
expenses for the wake and burial; THREE HUNDRED THOUSAND
(₱300,000.00) PESOS, as moral damages; and THREE HUNDRED
THIRTY[-]TWO THOUSAND (₱332,000.00] PESOS, as loss of
earning, plus the cost of this suit.
SO ORDERED.10
On appeal, the Court of Appeals affirmed the conviction in a Decision dated
December 20, 2005, thus:
WHEREFORE, premises considered, appeal is hereby [DENIED] and the
July 2, 2003 Decision of the Regional Trial Court of Aparri, Cagayan, Branch
[9], in Criminal Case No. 08-1185, is hereby AFFIRMED IN TOTO.
SO ORDERED.11
Petitioner moved for reconsideration but his motion was denied in a
Resolution dated March 13, 2006.
Hence, the instant appeal of petitioner on the following grounds:
I.
THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE
TRIAL COURT THAT PETITIONER IS THE ONE RESPONSIBLE FOR
INFLICTING THE SLIGHT PHYSICAL INJURIES SUSTAINED BY THE
DECEASED MANUEL CHY.
II.
THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE
TRIAL COURT FINDING PETITIONER LIABLE FOR THE DEATH OF
MANUEL CHY DESPITE THE FACT THAT THE CAUSE OF DEATH IS
MYOCARDIAL INFARCTION, A NON-VIOLENT RELATED CAUSE OF
DEATH.
III.
THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE
TRIAL COURT WHICH CONCLUDED THAT THE HEART FAILURE OF
MANUEL CHY WAS DUE TO "FRIGHT OR SHOCK CAUSED BY THE
MALTREATMENT."
IV.
BOTH THE APPELLATE TRIBUNAL AND THE TRIAL COURT ERRED IN
NOT ACQUITTING THE PETITIONER ON THE GROUND OF
REASONABLE DOUBT.12
In essence, the issue is whether or not petitioner is liable for the death of
Manuel Chy.
In his undated Memorandum,13 petitioner insists on a review of the factual
findings of the trial court because the judge who penned the decision was not
the same judge who heard the prosecution evidence. He adds that the Court
of Appeals had wrongly inferred from, misread and overlooked certain
relevant and undisputed facts, which, if properly considered, would justify a
different conclusion.14
At the onset, petitioner denies laying a hand on Manuel Chy. Instead, he
implicates Armando Foz as the author of the victim’s injuries. Corollarily, he
challenges the credibility of Armando’s brother, Fidel, who testified
concerning his sole culpability. Basically, petitioner disowns responsibility for
Chy’s demise since the latter was found to have died of myocardial infarction.
In support, he amplifies the testimony of Dr. Cleofas C. Antonio15 that Chy’s
medical condition could have resulted in his death anytime. Petitioner asserts
60
that, at most, he could be held liable for slight physical injuries because none
of the blows he inflicted on Chy was fatal.
The Office of the Solicitor General reiterates the trial court’s assessment of
the witnesses and its conclusion that the beating of Chy was the proximate
cause of his death.
Upon careful consideration of the evidence presented by the prosecution as
well as the defense in this case, we are unable to consider the petitioner’s
appeal with favor.
The present petition was brought under Rule 45 of the Rules of Court, yet,
petitioner raises questions of fact. Indeed, it is opportune to reiterate that this
Court is not the proper forum from which to secure a re-evaluation of factual
issues, save where the factual findings of the trial court do not find support in
the evidence on record or where the judgment appealed from was based on
a misapprehension of facts.16 Neither exception applies in the instant case as
would justify a departure from the established rule.
Further, petitioner invokes a recognized exception to the rule on non-
interference with the determination of the credibility of witnesses. He points
out that the judge who penned the decision is not the judge who received the
evidence and heard the witnesses. But while the situation obtains in this
case, the exception does not. The records reveal that Judge Conrado F.
Manauis inhibited from the proceedings upon motion of no less than the
petitioner himself. Consequently, petitioner cannot seek protection from the
alleged adverse consequence his own doing might have caused. For us to
allow petitioner relief based on this argument would be to sanction a travesty
of the Rules which was designed to further, rather than subdue, the ends of
justice.
We reiterate, the efficacy of a decision is not necessarily impaired by the fact
that the ponente only took over from a colleague who had earlier presided
over the trial. It does not follow that the judge who was not present during the
trial, or a fraction thereof, cannot render a valid and just decision.17 Here,
Judge Andres Q. Cipriano took over the case after Judge Manauis recused
himself from the proceedings. Even so, Judge Cipriano not only heard the
evidence for the defense, he also had an opportunity to observe Dr. Cleofas
Antonio who was recalled to clarify certain points in his testimony. Worth
mentioning, too, is the fact that Judge Cipriano presided during the taking of
the testimonies of Fidel Foz, Jr. and Alvin Pascua on rebuttal.
In any case, it is not unusual for a judge who did not try a case in its entirety
to decide it on the basis of the records on hand.18 He can rely on the
transcripts of stenographic notes and calibrate the testimonies of witnesses
in accordance with their conformity to common experience, knowledge and
observation of ordinary men. Such reliance does not violate substantive and
procedural due process of law.19
The Autopsy Report on the body of Manuel Chy disclosed the following
injuries:
POSTMORTEM FINDINGS
Body embalmed, well preserved.
Cyanotic lips and nailbeds.
Contusions, dark bluish red: 4.5 x 3.0 cms., lower portion of the left ear;
4.0 x 2.8 cms., left inferior mastoid region; 2.5 x 1.1 cms., upper lip; 2.7 x 1.0
cms., lower lip; 5.8 x 5.5 cms., dorsum of left hand.
Lacerated wound, 0.8 cm., involving mucosal surface of the upper lip on
the right side.
No fractures noted.
Brain with tortuous vessels. Cut sections show congestion. No hemorrhage
noted.
Heart, with abundant fat adherent on its epicardial surface. Cut sections
show a reddish brown myocardium with an area of hyperemia on the whole
posterior wall, the lower portion of the anterior wall and the inferior portion of
the septum. Coronary arteries, gritty, with the caliber of the lumen reduced by
approximately thirty (30%) percent. Histopathological findings show mild
fibrosis of the myocardium.
Lungs, pleural surfaces, shiny; with color ranging from dark red to dark
purple. Cut sections show a gray periphery with reddish brown central portion
with fluid oozing on pressure with some reddish frothy materials noted.
Histopathological examinations show pulmonary edema and hemorrhages.
Kidneys, purplish with glistening capsule. Cut sections show congestion.
Histopathological examinations show mild lymphocytic infiltration.1avvphi1
Stomach, one-half (1/2) full with brownish and whitish materials and other
partially digested food particles.
61
CAUSE OF DEATH: - Myocardial Infarction. (Emphasis supplied.)20
At first, petitioner denied employing violence against Chy. In his undated
Memorandum, however, he admitted inflicting injuries on the
deceased, albeit, limited his liability to slight physical injuries. He argues that
the superficial wounds sustained by Chy did not cause his death. 21 Quite the
opposite, however, a conscientious analysis of the records would acquaint us
with the causal connection between the death of the victim and the mauling
that preceded it. In open court, Dr. Antonio identified the immediate cause of
Chy’s myocardial infarction:
ATTY. TUMARU:
Q: You diagnose[d] the cause of death to be myocardial infarction that is
because there was an occlusion in the artery that prevented the flowing of
blood into the heart?
A: That was not exactly seen at the autopsy table but it changes, the
hyperemic changes [in] the heart muscle were the one[s] that made us [think]
or gave strong conclusion that it was myocardial infarction, and most likely
the cause is occlusion of the blood vessels itself. (Emphasis supplied.)22
By definition, coronary occlusion23 is the complete obstruction of an artery of
the heart, usually from progressive arteriosclerosis 24 or the thickening and
loss of elasticity of the arterial walls. This can result from sudden emotion in
a person with an existing arteriosclerosis; otherwise, a heart attack will not
occur.25 Dr. Jessica Romero testified on direct examination relative to this
point:
ATTY. CALASAN:
Q: Could an excitement trigger a myocardial infarction?
A: Excitement, I cannot say that if the patient is normal[;] that is[,] considering
that the patient [does] not have any previous [illness] of hypertension, no
previous history of myocardial [ischemia], no previous [arteriosis] or
hardening of the arteries, then excitement [cannot] cause myocardial
infarction. (Emphasis supplied.)26
The Autopsy Report bears out that Chy has a mild fibrosis of the
myocardium27 caused by a previous heart attack. Said fibrosis28 or formation
of fibrous tissue or scar tissue rendered the middle and thickest layer of the
victim’s heart less elastic and vulnerable to coronary occlusion from sudden
emotion. This causation is elucidated by the testimony of Dr. Antonio:
ATTY. CALASAN:
Q: You said that the physical injuries will cause no crisis on the part of the
victim, Doctor?
A: Yes, sir.
Q: And [these] physical injuries [were] caused by the [boxing] on the mouth
and[/]or hitting on the nape by a bottle?
A: Yes, sir.
Q: On the part of the deceased, that [was] caused definitely by emotional
crisis, Doctor?
A: Yes, sir.
Q: And because of this emotional crisis the heart palpitated so fast, so much
so, that there was less oxygen being pumped by the heart?
A: Yes, sir.
Q: And definitely that caused his death, Doctor?
A: Yes, sir, it could be.29
In concurrence, Dr. Antonio A. Paguirigan also testified as follows:
ATTY. CALASAN:
Q: I will repeat the question… Dr. Antonio testified that the deceased died
because of the blow that was inflicted, it triggered the death of the
deceased, do you agree with his findings, Doctor?
A: Not probably the blow but the reaction sir.
Q: So you agree with him, Doctor?
A: It could be, sir.
Q: You agree with him on that point, Doctor?
A: Yes, sir.30
It can be reasonably inferred from the foregoing statements that the
emotional strain from the beating aggravated Chy’s delicate constitution and
led to his death. The inevitable conclusion then surfaces that the myocardial
infarction suffered by the victim was the direct, natural and logical
consequence of the felony that petitioner had intended to commit.
Article 4(1) of the Revised Penal Code states that criminal liability shall be
incurred "by any person committing a felony (delito) although the wrongful act
done be different from that which he intended." The essential requisites for
the application of this provision are: (a) the intended act is felonious; (b) the
resulting act is likewise a felony; and (c) the unintended albeit graver wrong
was primarily caused by the actor’s wrongful acts.31lawph!l
In this case, petitioner was committing a felony when he boxed the victim and
hit him with a bottle. Hence, the fact that Chy was previously afflicted with a
62
heart ailment does not alter petitioner’s liability for his death. Ingrained in our
jurisprudence is the doctrine laid down in the case of United States v.
Brobst32 that:
x x x where death results as a direct consequence of the use of illegal
violence, the mere fact that the diseased or weakened condition of the
injured person contributed to his death, does not relieve the illegal aggressor
of criminal responsibility.33
In the same vein, United States v. Rodriguez34 enunciates that:
x x x although the assaulted party was previously affected by some internal
malady, if, because of a blow given with the hand or the foot, his death was
hastened, beyond peradventure he is responsible therefor who produced the
cause for such acceleration as the result of a voluntary and unlawfully
inflicted injury. (Emphasis supplied.)35
In this jurisdiction, a person committing a felony is responsible for all the
natural and logical consequences resulting from it although the unlawful act
performed is different from the one he intended;36 "el que es causa de la
causa es causa del mal causado" (he who is the cause of the cause is the
cause of the evil caused).37 Thus, the circumstance that petitioner did not
intend so grave an evil as the death of the victim does not exempt him from
criminal liability. Since he deliberately committed an act prohibited by law,
said condition simply mitigates his guilt in accordance with Article 13(3) 38 of
the Revised Penal Code.39 Nevertheless, we must appreciate as mitigating
circumstance in favor of petitioner the fact that the physical injuries he
inflicted on the victim, could not have resulted naturally and logically, in the
actual death of the victim, if the latter’s heart was in good condition.
Considering that the petitioner has in his favor the mitigating circumstance of
lack of intention to commit so grave a wrong as that committed without any
aggravating circumstance to offset it, the imposable penalty should be in the
minimum period, that is, reclusion temporal in its minimum period,40or
anywhere from twelve (12) years and one (1) day to fourteen years (14)
years and eight (8) months. Applying the Indeterminate Sentence Law, 41 the
trial court properly imposed upon petitioner an indeterminate penalty of ten
(10) years of prisión mayor, as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal as maximum.
We shall, however, modify the award of damages to the heirs of Manuel Chy
for his loss of earning capacity in the amount of ₱332,000. In fixing the
indemnity, the victim’s actual income at the time of death and probable life
expectancy are taken into account. For this purpose, the Court adopts the
formula used in People v. Malinao:42
Net earning capacity = 2/3 x (80-age of x a reasonable portion of the the
victim at the annual net income which time of this death) would have been
received
by the heirs for support.43
Branch 9 of the Aparri, Cagayan RTC took judicial notice of the salary which
Manuel Chy was receiving as a sheriff of the court. At the time of his death,
Chy was 51 years old and was earning a gross monthly income of ₱10,600
or a gross annual income of ₱127,200. But, in view of the victim’s delicate
condition, the trial court reduced his life expectancy to 10 years. It also
deducted ₱7,000 from Chy’s salary as reasonable living expense. However,
the records are bereft of showing that the heirs of Chy submitted evidence to
substantiate actual living expenses. And in the absence of proof of living
expenses, jurisprudence44 approximates net income to be 50% of the gross
income. Accordingly, by reason of his death, the heirs of Manuel Chy should
be awarded ₱1,229,600 as loss of earning capacity, computed as follows:
Net earning capacity = 2/3 x (80-51) x [₱127,200 - 1/2 (₱127,200)]
= 2/3 x (29) x ₱63,600
= 19 1/3 x ₱63,600
= ₱1,229,600
We sustain the trial court’s grant of funerary expense of ₱200,000 as
stipulated by the parties45 and civil indemnity of ₱50,000.46 Anent moral
damages, the same is mandatory in cases of murder and homicide, without
need of allegation and proof other than the death of the victim.47 However, in
obedience to the controlling case law, the amount of moral damages should
be reduced to ₱50,000.
WHEREFORE, the Decision dated December 20, 2005 and the Resolution
dated March 13, 2006 of the Court of Appeals in CA-G.R.-CR No. 27544 are
AFFIRMED with MODIFICATION in that the award of moral damages is
reduced to ₱50,000. Petitioner is further ordered to indemnify the heirs of
Manuel K. Chy ₱50,000 as civil indemnity; ₱200,000, representing expenses
for the wake and burial; and ₱1,229,600 as loss of earning capacity.
No pronouncement as to costs.
SO ORDERED.
63
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,
LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by
their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-
appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-
appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its
way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among
the passengers were Juan Bataclan, seated beside and to the right of the
driver, Felipe Lara, sated to the right of Bataclan, another passenger
apparently from the Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated in the left side of the driver, and a
woman named Natalia Villanueva, seated just behind the four last
mentioned. At about 2:00 o'clock that same morning, while the bus was
running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right
side of the road and turned turtle. Some of the passengers managed to
leave the bus the best way they could, others had to be helped or pulled
out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia
Villanueva, could not get out of the overturned bus. Some of the
passengers, after they had clambered up to the road, heard groans and
moans from inside the bus, particularly, shouts for help from Bataclan and
Lara, who said they could not get out of the bus. There is nothing in the
evidence to show whether or not the passengers already free from the
wreck, including the driver and the conductor, made any attempt to pull out
or extricate and rescue the four passengers trapped inside the vehicle, but
calls or shouts for help were made to the houses in the neighborhood. After
half an hour, came about ten men, one of them carrying a lighted torch
made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost
immediately, a fierce fire started, burning and all but consuming the bus,
including the four passengers trapped inside it. It would appear that as the
bus overturned, gasoline began to leak and escape from the gasoline tank
on the side of the chassis, spreading over and permeating the body of the
bus and the ground under and around it, and that the lighted torch brought
by one of the men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed passengers inside
the bus were removed and duly identified that of Juan Bataclan. By reason
of his death, his widow, Salud Villanueva, in her name and in behalf of her
five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees
in the total amount of P87,150. After trial, the Court of First Instance of
Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus
P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants
appealed the decision to the Court of Appeals, but the latter endorsed the
appeal to us because of the value involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of common carrier
to its passengers and their goods. For purposes of reference, we are
reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra
ordinary diligence for the safety of the passengers is further set forth in
articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers
are presumed to have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as prescribed in articles
1733 and 1755
64
ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's employees,
although such employees may have acted beyond the scope of their
authority or in violation of the order of the common carriers.
This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other passengers or
of strangers, if the common carrier's employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the
act or omission.
We agree with the trial court that the case involves a breach of contract of
transportation for hire, the Medina Transportation having undertaken to
carry Bataclan safely to his destination, Pasay City. We also agree with the
trial court that there was negligence on the part of the defendant, through
his agent, the driver Saylon. There is evidence to show that at the time of
the blow out, the bus was speeding, as testified to by one of the passengers,
and as shown by the fact that according to the testimony of the witnesses,
including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a
distance of about 150 meters. The chauffeur, after the blow-out, must have
applied the brakes in order to stop the bus, but because of the velocity at
which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is
liable. The only question is to what degree. The trial court was of the
opinion that the proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned the bus, including
himself and his co-passengers who were unable to leave it; that at the time
the fire started, Bataclan, though he must have suffered physical injuries,
perhaps serious, was still alive, and so damages were awarded, not for his
death, but for the physical injuries suffered by him. We disagree. A
satisfactory definition of proximate cause is found in Volume 38, pages 695-
696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It
is as follows:
. . . 'that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the
result would not have occurred.' And more comprehensively, 'the proximate
legal cause is that acting first and producing the injury, either immediately
or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting
the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event
should, as an ordinary prudent and intelligent person, have reasonable
ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins down a
passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle sets it on fire, and
the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the
vehicle. But in the present case under the circumstances obtaining in the
same, we do not hesitate to hold that the proximate cause was the
overturning of the bus, this for the reason that when the vehicle turned not
only on its side but completely on its back, the leaking of the gasoline from
the tank was not unnatural or unexpected; that the coming of the men with
a lighted torch was in response to the call for help, made not only by the
passengers, but most probably, by the driver and the conductor themselves,
and that because it was dark (about 2:30 in the morning), the rescuers had
to carry a light with them, and coming as they did from a rural area where
lanterns and flashlights were not available; and what was more natural than
that said rescuers should innocently approach the vehicle to extend the aid
and effect the rescue requested from them. In other words, the coming of
the men with a torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and the call
for outside help. What is more, the burning of the bus can also in part be
attributed to the negligence of the carrier, through is driver and its
conductor. According to the witness, the driver and the conductor were on
the road walking back and forth. They, or at least, the driver should and
must have known that in the position in which the overturned bus was,
gasoline could and must have leaked from the gasoline tank and soaked the
area in and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed even from a
distance, and yet neither the driver nor the conductor would appear to have
cautioned or taken steps to warn the rescuers not to bring the lighted torch
65
too near the bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced, particularly, Articles
1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the
earning capacity of the deceased, as well as the other elements entering
into a damage award, we are satisfied that the amount of SIX THOUSAND
(P6,000) PESOS would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs
are entitled to attorney's fees, and assessing the legal services rendered by
plaintiffs' attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the
loss of merchandise carried by the deceased in the bus, is adequate and will
not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she was
visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector
to have the tires of the bus changed immediately because they were already
old, and that as a matter of fact, he had been telling the driver to change
the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not
taken the necessary precautions to insure the safety of his passengers. Had
he changed the tires, specially those in front, with new ones, as he had been
instructed to do, probably, despite his speeding, as we have already stated,
the blow out would not have occurred. All in all, there is reason to believe
that the driver operated and drove his vehicle negligently, resulting in the
death of four of his passengers, physical injuries to others, and the complete
loss and destruction of their goods, and yet the criminal case against him,
on motion of the fiscal and with his consent, was provisionally dismissed,
because according to the fiscal, the witnesses on whose testimony he was
banking to support the complaint, either failed or appear or were reluctant
to testify. But the record of the case before us shows the several witnesses,
passengers, in that bus, willingly and unhesitatingly testified in court to the
effect of the said driver was negligent. In the public interest the prosecution
of said erring driver should be pursued, this, not only as a matter of justice,
but for the promotion of the safety of passengers on public utility buses. Let
a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded
by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX
THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT
HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's
fees, respectively, the decision appealed is from hereby affirmed, with costs.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding
him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino
Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and
asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod,
Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he
wanted Palangpangan to be killed because of a land dispute between them and that Mandaya should
accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and
Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena,
Misamis Occidental. At the instance of his companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It
turned out, however, that Palangpangan was in another City and her home was then occupied by her
son-in-law and his family. No one was in the room when the accused fired the shots. No one was hit by
the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before
the five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina
Palangpangan and we will come back if (sic) you were not injured". 2
66
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed
by the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from
this Court a modification of the judgment by holding him liable only for an impossible
crime, citing Article 4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be
incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons
or property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his
companions riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible.
Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder.
Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed
out that:
. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time.
Had it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in
the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that
the result or end contemplated shall have been physically possible. So long as
these conditions were not present, the law and the courts did not hold him
criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it
not aimed at something quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such
criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or
property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2)
the means employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible
of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by
the offender must be by its nature one impossible of accomplishment. 11There must be either
impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a
crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive,
desire and expectation is to perform an act in violation of the law; (2) there is
intention to perform the physical act; (3) there is a performance of the intended
physical act; and (4) the consequence resulting from the intended act does not
amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor
or beyond his control prevent the consummation of the intended crime. 16 One example is the man
who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds
the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would
be, although in reality, the victim was not present in said place and thus, the petitioner failed to
accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the
accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be. It
turned out, however, that the latter was in a different place. The accused failed to hit him and to
achieve his intent. The Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined
where he was, and where the bullet pierced the roof, renders it no less an
attempt to kill. It is well settled principle of criminal law in this country that where
the criminal result of an attempt is not accomplished simply because of an
obstruction in the way of the thing to be operated upon, and these facts are
unknown to the aggressor at the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim
because the latter did not pass by the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that
way; and further, that he was arrested and prevented from committing the
murder. This rule of the law has application only where it is inherently impossible
to commit the crime. It has no application to a case where it becomes impossible
for the crime to be committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the crime which fails to
materialize; in short it has no application to the case when the impossibility grows
out of extraneous acts not within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there
was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his
criminal intent, no one can seriously doubt that the protection of the public
requires the punishment to be administered, equally whether in the unseen
depths of the pocket, etc., what was supposed to exist was really present or not.
The community suffers from the mere alarm of crime. Again: Where the thing
intended (attempted) as a crime and what is done is a sort to create alarm, in
67
 other words, excite apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that
the latter was inside. However, at that moment, the victim was in another part of the house. The court
convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this
Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon
these decisions to resolve the issue at hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes
and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure
is silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said
Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense
to an attempt charge. In this regard, commentators and the cases generally divide the impossibility
defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held
that:
The factual situation in the case at bar present a physical impossibility which rendered the intended
crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code,
such is sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence
of Palangpangan was a supervening cause independent of the actor's will, will render useless the
provision in Article 4, which makes a person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that
case all circumstances which prevented the consummation of the offense will be treated as an accident
independent of the actor's will which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of
respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We
hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2,
and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months
of arresto mayor, together with the accessory penalties provided by the law, and to pay the costs.
SO ORDERED.

. . . factual impossibility of the commission of the crime is not a defense. If the

crime could have been committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the crime was impossible of
commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for
an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into
and out of prison. The law governing the matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to send a letter without the latter's
knowledge and consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court held the accused liable for
attempt but the appellate court reversed. It held unacceptable the contention of the state that
"elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model
Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In
disposing of this contention, the Court held that the federal statutes did not contain such provision, and
thus, following the principle of legality, no person could be criminally liable for an act which was not
made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus
conduct constitutes the offense of attempt irrespective of legal impossibility until
such time as such legislative changes in the law take place, this court will not
fashion a new non-statutory law of criminal attempt.

To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that
the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for
any crime — neither for an attempt not for an impossible crime. The only reason for this is that in
American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as
a defense to a crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The
impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself.
Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code
makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non
distinguit nec nos distinguere debemos.
68
Republic of the Philippines (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft,
Supreme Court allegedly committed as follows:
Manila
That on or about and sometime in the month of July 1997, in Kalookan City,
THIRD DIVISION Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one
another, being then all employees of MEGA FOAM INTERNATIONAL INC.,
GEMMA T. JACINTO, G.R. No. 162540 herein represented by JOSEPH DYHENGCO Y CO, and as such had free access
Petitioner, inside the aforesaid establishment, with grave abuse of trust and confidence
Present: reposed upon them with intent to gain and without the knowledge and
consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro
YNARES-SANTIAGO, J., Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00,
Chairperson, representing payment made by customer Baby Aquino to the Mega Foam
- versus - CHICO-NAZARIO, Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated
VELASCO, JR., amount of P10,000.00.
NACHURA, and
PERALTA, JJ. CONTRARY TO LAW.[3]

PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent.
July 13, 2009
x-----------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T.
Jacinto seeking the reversal of the Decision[1] of the Court of Appeals (CA) in
CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's
conviction of the crime of Qualified Theft, and its Resolution[2] dated March
5, 2004 denying petitioner's motion for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y
Rivera and Jacqueline Capitle, was charged before the Regional Trial Court
The prosecution's evidence, which both the RTC and the CA found to be
more credible, reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649
postdated July 14, 1997 in the amount of P10,000.00. The check was
payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and
petitioner was then the collector of Mega Foam. Somehow, the check was
deposited in the Land Bank account of Generoso Capitle, the husband of
Jacqueline Capitle; the latter is the sister of petitioner and the former
pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received
a phone call sometime in the middle of July from one of their customers,
Jennifer Sanalila. The customer wanted to know if she could issue checks
payable to the account of Mega Foam, instead of issuing the checks payable
to CASH. Said customer had apparently been instructed by Jacqueline
Capitle to make check payments to Mega Foam payable to CASH. Around
that time, Ricablanca also received a phone call from an employee of Land
Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason

69
for the call was to inform Capitle that the subject BDO check deposited in
his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former
employee/collector of Mega Foam, asking the latter to inform Jacqueline
Capitle about the phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and relay the message
through Valencia, because the Capitles did not have a phone; but they could
be reached through Valencia, a neighbor and former co-employee of
Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and
instructed Ricablanca to ask Baby Aquino to replace the check with
cash. Valenciaalso told Ricablanca of a plan to take the cash and divide it
equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported
the matter to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm
that the latter indeed handed petitioner a BDO check for P10,000.00
sometime in June 1997 as payment for her purchases from Mega
Foam.[4] Baby Aquino further testified that, sometime in July 1997,
petitioner also called her on the phone to tell her that the BDO check
bounced.[5] Verification from company records showed that petitioner never
remitted the subject check to Mega Foam. However, Baby Aquino said that
she had already paid Mega Foam P10,000.00 cash in August 1997 as
replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted depositing the
subject BDO check in his bank account, but explained that the check came
into his possession when some unknown woman arrived at his house
around the first week of July 1997 to have the check rediscounted. He
parted with his cash in exchange for the check without even bothering to
inquire into the identity of the woman or her address. When he was
informed by the bank that the check bounced, he merely disregarded it as
he didnt know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked
and dusted with fluorescent powder by the NBI. Thereafter, the bills were
given to Ricablanca, who was tasked to pretend that she was going along
with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's
house. Petitioner, who was then holding the bounced BDO check, handed
over said check to Ricablanca. They originally intended to proceed to Baby
Aquino's place to have the check replaced with cash, but the plan did not
push through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she
met petitioner and Jacqueline Capitle. Petitioner, her husband, and
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided
not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded
petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca
alighted from the jeep and entered the premises of Baby Aquino,
pretending that she was getting cash from Baby Aquino.However, the cash
she actually brought out from the premises was the P10,000.00 marked
money previously given to her by Dyhengco. Ricablanca divided the money
and upon returning to the jeep, gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents,
who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic
Chemist found fluorescent powder on the palmar and dorsal aspects of both
of their hands.This showed that petitioner and Valencia handled the marked
money. The NBI filed a criminal case for qualified theft against the two and
one Jane Doe who was later identified as Jacqueline Capitle, the wife of
Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and
presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she
resigned on June 30, 1997, but claimed that she had stopped collecting
payments from Baby Aquino for quite some time before her resignation
from the company. She further testified that, on the day of the arrest,
Ricablanca came to her mothers house, where she was staying at that time,
and asked that she accompany her (Ricablanca) to Baby Aquino's
house. Since petitioner was going for a pre-natal check-up at the Chinese
General Hospital, Ricablanca decided to hitch a ride with the former and her
husband in their jeep going to Baby Aquino's place in Caloocan City. She
allegedly had no idea why Ricablanca asked them to wait in their jeep,
which they parked outside the house of Baby Aquino, and was very
70
surprised when Ricablanca placed the money on her lap and the NBI agents
arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until
she resigned on June 30, 1997. It was never part of her job to collect
payments from customers. According to her, on the morning of August 21,
1997, Ricablanca called her up on the phone, asking if she (Valencia) could
accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims
that she agreed to do so, despite her admission during cross-examination
that she did not know where Baby Aquino resided, as she had never been to
said house. They then met at the house of petitioner's mother, rode the
jeep of petitioner and her husband, and proceeded to Baby Aquino's
place. When they arrived at said place, Ricablanca alighted, but requested
them to wait for her in the jeep. After ten minutes, Ricablanca came out
and, to her surprise, Ricablanca gave her money and so she even asked,
What is this? Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on October 4, 1999,
the RTC rendered its Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma
Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and
Jacqueline Capitle GUILTY beyond reasonable doubt of the crime
of QUALIFIED THEFTand each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11)
DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20)
DAYS, as maximum.
SO ORDERED.[7]
The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in
that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4
months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed
only for petitioner Gemma Tubale Jacinto, but the same was denied per
Resolution dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner
alone, assailing the Decision and Resolution of the CA. The issues raised in
the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in
the information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond
reasonable doubt.[8]
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to
constitute the elements of the crime of qualified theft defined under Article
308, in relation to Article 310, both of the Revised Penal Code: (1) the taking
of personal property - as shown by the fact that petitioner, as collector for
Mega Foam, did not remit thecustomer's check payment to her employer
and, instead, appropriated it for herself; (2) said property belonged to
another − the check belonged to Baby Aquino, as it was her payment for
purchases she made; (3) the taking was done with intent to gain this is
presumed from the act of unlawful taking and further shown by the fact
that the check was deposited to the bank account of petitioner's brother-in-
law; (4)it was done without the owners consent petitioner hid the fact that
she had received the check payment from her employer's customer by not
remitting the check to the company; (5) it was accomplished without the
use of violence or intimidation against persons, nor of force upon things the
check was voluntarily handed to petitioner by the customer, as she was
known to be a collector for the company; and (6) it was done with grave
abuse of confidence petitioner is admittedly entrusted with the collection of
payments from customers.
71
However, as may be gleaned from the aforementioned Articles of the
Revised Penal Code, the personal property subject of the theft must have
some value, as the intention of the accused is to gain from the thing
stolen. This is further bolstered by Article 309, where the law provides that
the penalty to be imposed on the accused is dependent on the value of the
thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to
Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the crime of
qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals[9] is highly instructive and applicable to the present
case.In Intod, the accused, intending to kill a person, peppered the latters
bedroom with bullets, but since the intended victim was not home at the
time, no harm came to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was adjudged guilty
only of an impossible crime as defined and penalized in paragraph 2, Article
4, in relation to Article 59, both of the Revised Penal Code, because of the
factual impossibility of producing the crime. Pertinent portions of said
provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:
xxxx
2. By any person performing an act which would be an offense
against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate to
ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. - When the
person intending to commit an offense has already performed the acts for
the execution of the same but nevertheless the crime was not produced by
reason of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are
essentially inadequate to produce the result desired by him, the court,
having in mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed
would be an offense against persons or property; (2) that the act was done
with evil intent; and (3) that its accomplishment was inherently impossible,
or the means employed was either inadequate or ineffectual. The aspect of
the inherent impossibility of accomplishing the intended crime under Article
4(2) of the Revised Penal Code was further explained by the Court
in Intod[10] in this wise:
Under this article, the act performed by the offender cannot produce an
offense against persons or property because: (1) the commission of the
offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the
offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. There
must be either (1) legal impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify the act as an impossible
crime.
Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved
factual impossibility, i.e., a man puts his hand in the coat pocket of another
with the intention to steal the latter's wallet, but gets nothing since the
pocket is empty.
Herein petitioner's case is closely akin to the above example of factual
impossibility given in Intod. In this case, petitioner performed all the acts to
consummate the crime of qualified theft, which is a crime against
72
property.Petitioner's evil intent cannot be denied, as the mere act of
unlawfully taking the check meant for Mega Foam showed her intent to gain
or be unjustly enriched.Were it not for the fact that the check bounced, she
would have received the face value thereof, which was not rightfully
hers. Therefore, it was only due to the extraneous circumstance of the
check being unfunded, a fact unknown to petitioner at the time, that
prevented the crime from being produced. The thing unlawfully taken by
petitioner turned out to be absolutely worthless, because the check was
eventually dishonored, and Mega Foam had received the cash to replace the
value of said dishonored check.
The fact that petitioner was later entrapped receiving the P5,000.00 marked
money, which she thought was the cash replacement for the dishonored
check, is of no moment. The Court held in Valenzuela v. People[12] that under
the definition of theft in Article 308 of the Revised Penal Code, there is only
one operative act of execution by the actor involved in theft ─ the taking of
personal property of another. Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308,
there is one apparent answer provided in the language of the law that theft
is already produced upon the tak[ing of] personal property of another
without the latters consent.
xxxx
x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed from
that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able
or unable to freely dispose of the property stolen since the deprivation from
the owner alone has already ensued from such acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of ones personal property, is
the element which produces the felony in its consummated stage. x x x [13]
From the above discussion, there can be no question that as of the time
that petitioner took possession of the check meant for Mega Foam, she
had performed all the acts to consummate the crime of theft, had it not
been impossible of accomplishment in this case. The circumstance
of petitioner receiving the P5,000.00 cash as supposed replacement for the
dishonored check was no longer necessary for the consummation of the
crime of qualified theft. Obviously, the plan to convince Baby Aquino to give
cash as replacement for the check was hatched only after the check had
been dishonored by the drawee bank.Since the crime of theft is not a
continuing offense, petitioner's act of receiving the cash replacement should
not be considered as a continuation of the theft. At most, the fact that
petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored
check replaced with cash by its issuer is a different and separate fraudulent
scheme.Unfortunately, since said scheme was not included or covered by
the allegations in the Information, the Court cannot pronounce judgment on
the accused; otherwise, it would violate the due process clause of the
Constitution. If at all, that fraudulent scheme could have been another
possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the
Court of Appeals, dated December 16, 2003, and its Resolution dated March
5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of
an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2,
and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to
suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.
SO ORDERED.
73
ART 5
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 88582 March 5, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HEINRICH S. RITTER, accused-appellant,
The Solicitor General for plaintiff-appellee.
Esteban B. Bautista for accused-appellant.
GUTIERREZ, JR., J.:
The appellant challenges his conviction of the crime involving a young girl of about
12 years old who had been allegedly raped and who later died because of a foreign
object left inside her vaginal canal.
Heinrich Stefan Ritter was charged with the crime of rape with homicide under an
information which reads:
That on or about the tenth (10th day of October, 1986 in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused with lewd design and with intent to kill one
Rosario Baluyot, a woman under twelve (12) years of age, did then and
there wilfully, unlawfully and feloniously have carnal knowledge of said
Rosario Baluyot and inserted a foreign object into the vaginal canal of said
Rosario Baluyot which caused her death shortly thereafter, to the damage
and prejudice of her relatives. (66)
When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for
trial on the merits.
To prove the guilt of the accused, the prosecutor presented the following witnesses,
namely: (1) Jessie Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano Victoria,
(4) Policarpio Baluyot, (5) Dr. Reino Rosete, (6) Sumulong Daniel, (7) Jessica
Herrera, (8) Sister Eva Palencia, (9) Conrado Salonga, (10) Dr. Devonne Loop, (11)
Dr. Leo Cruz, (12) Paul Maclor, (13) Aida Sarmiento, (14) Patricia Prollamanta (15)
Mel Santos, (16) Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo Marquez,
(19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal
Dorentino Z. Floresta, (22) Corazon Caber, (23) Rodolfo Mercurio and (24) Fe
Israel.
On the other hand, the defense offered in evidence Exhibits "1" to "24" and the
testimonies of (1) Heinrich S. Ritter, (2) Father Roque Villanueva, (3) Angelita
Amulong (4) Gaspar Alcantara, (5) Dr. Val Barcinal and (6) Dr. Pedro C. Solis.
The facts of the case upon which the lower court based its finding of guilt beyond
reasonable doubt are summarized in its decision, as follows:
The people's evidence show that on October 10, 1986 about midnight,
accused Heinrich Stefan Ritter brought a boy and girl namely: Jessie
Ramirez and Rosario Baluyot inside his hotel room at MGM Hotel along
Magsaysay Drive, Olongapo City. These two (2) children were chosen from
among a bunch of street children. Once inside the hotel room accused told
them to take a bath. Jessie Ramirez, alias "Egan", was the first to take a
bath and when he came out Rosario Baluyot went to the bathroom to do the
same. While Rosario Baluyot was inside the bathroom, accused Ritter took
out some pictures depicting dressed up young boys, and put them on top of
the table. Other things which were taken out and placed on top of a table
were three (3) other objects which he described as like that of a vicks
inhaler. One of these objects the accused played with his hands and placed it
on his palms. The color of which is grayish blue which turned out later to be
the foreign object which was inserted inside the vagina of Rosario Baluyot.
The other objects were later established to be anti-nasal inhalers against
pollution purchased by the accused in Bangkok when he went there as a
tourist. While Rosario was in the bathroom, accused told Ramirez to lay
down on bed, and so did the accused. He then started masturbating the
young boy and also guided the boy's hand for him to be masturbated, so that
they masturbated each other, while they were both naked, and he gave
Jessie Ramirez an erection. When Rosario Baluyot came out of the
bathroom, she was told to remove her clothes by accused and to join him in
bed. The accused then placed himself between the two (2) children and
accused started fingering Rosario.
At this time, Ramirez was already sleepy, but Rosario touched him to call
his attention. He looked, and he saw accused placing his penis against the
vagina of Rosario and that he was trying to penetrate the vagina but it would
not fit. After what he saw, Ramirez did not anymore bother to look because
he was sleepy and fell asleep.
The following morning, the accused, whom the juveniles described as an
"American, paid Ramirez alias"Egan" P200.00 and Rosario P300.00. He
74
then left them in the hotel. After the American left, they went downstairs,
and Rosario told Egan that the American inserted something in her vagina.
But they could not do anything anymore, because the American had already
left, and neither did they report the matter to the police. Sometime the
following day, Jessie saw Rosario and he asked her whether the object was
already removed from her body and Rosario said "Yes". However, Jessie
Ramirez claimed that on the evening of that same date, he saw Rosario and
she was complaining of pain in her vagina and when Egan asked her, she
said that the foreign object was not yet removed. Then there was another
occasion wherein Jessie was summoned and when he came he saw Rosario
writhing in pain and when he tried to talk to Rosario she scolded him with
defamatory remarks. Thereafter, he did not see Rosario anymore because he
already went home to his aunt's house who resided at Barrio Barretto and
resumed his studies in the primary grades.
On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage
scavenging at Lot 21, near the gate of the U.S. Naval Base saw Rosario at
Magsaysay Drive near the Happy Bake Shop near Lot 21, being ogled by
people because Rosario's skirt was bloodied and she was unconscious and
foul smelling. Since nobody helped Rosario, he took pity on her condition
and brought her to the Olongapo City General Hospital in an unconscious
condition, via jeepney. He went to the Information desk and he was the one
who gave the personal circumstances of Rosario as to her name, age, her
residence as Nagbakulaw, Lower Kalaklan, and Gaspar Alcantara signed as
"guardian" of Rosario, while Rosario was already in the emergency room.
Although Gaspar Alcantara denied that he did not know the name of
Rosario Baluyot when he brought her to the hospital, this is belied by the
testimony of the Information clerk Lorna Limos, who was then on duty.
Limos testified that it was Alcantara who supplied the personal
circumstances of Rosario. The Court gives more credence to the testimony
of Miss Limos as against Gaspar Alcantara who became a defense witness,
for the reason that through his own testimony, Gaspar Alcantara claimed
that even prior to May 14, 1987, he had already known Rosario Baluyot for
more than one (1) year, because he has seen the said girl go to the house of
his twin brother, Melchor Alcantara, who is his immediate neighbor.
Rosario used to visit a girl by the name of "Nora" who was then in the
custody of his brother. His brother Melchor was also living with their
mother, brother and sister-in-law and their two (2) children in his house.
Rosario as per Gaspar's testimony even stays for one week or a few days at
his brother's house when she visits Nora. So the Court can safely assume
that of all the more than one (1) year that he had regularly seen Rosario at
his brother's house, he must have already did come to know the name of
Rosario Baluyot including her age. In his testimony in Court he stated that
he even asked Rosario for movie and softdrinks money which can safely be
concluded that he knows her very well. It is against normal behavior
especially to a Filipino who have a characteristic of curiosity not to have
found out the real name of the girl he claims to know only as "Tomboy".
While Rosario Baluyot was confined at the Olongapo City General
Hospital, nobody was attending to her since she is a street child, having
stowed away from the custody of her grandmother. Three (3) good
samaritans who belong to religious and civic organizations, in the persons
of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in one of their missions in
the hospital chanced upon Rosario Baluyot who was all alone with no
relatives attending to her and after finding out that she was only 12 years
old decided to help her. After a short interview with Rosario, regarding her
name and age only because she clamped up about her residence and her
relatives, they decided to help her by providing her the medicine she needed
during her confinement in readiness for an operation. It was Fe Israel who
was able to get the name and age of Rosario Baluyot from Rosario Baluyot
herself when she saw her for the first time. For Fe Israel, the age of Rosario
Baluyot was an important factor because their program assisted only
indigent patients from infants up to 13 years old.
Rosario's first ailment at the Olongapo City General Hospital was loose
bowel movement and vomiting, which was first suspected as gastro-
enteritis, but which came out later as symptoms of peritonitis due to a
massive infection in the abdominal cavity. Subsequently, on May 17, 1987,
after she was examined by the physicians at the hospital, it was found out
that there was a foreign object lodged in her vaginal canal and she had
vaginal discharge tinged with blood and foul smelling odor emanating from
her body. One of the doctors who attended to her was Dr. Barcinal, an OB-
GYNE. Dr. Barcinal tried to extract the foreign object by means of a
forceps, but several attempts proved futile because said object was deeply
embedded in the vaginal canal and was covered by tissues. Her abdomen
was enlarged, tender and distended, symptoms of peritonitis. The patient
was feverish and incoherent when she was scheduled for operation on May
19, 1987, after the first attempt for an operation on May 17 was aborted
allegedly because the consent of Dr. Reino Rosete, the hospital director was
not obtained. The surgeon who operated on her was Dr. Rosete himself. He
testified that Rosario had to be operated even in that condition in order to
save her life. Her condition was guarded. This was corroborated by Dr. Leo
Cruz, the anesthesiologist during Rosario's operation. It was in the evening
of May 19 at about 7:00 p.m. when Dr. Rosete opened her abdomen by
making a 5 inch incision on her stomach. He found out that the fallopian
tubes were congested with pus and so with the peritonieum, and the pelvic
cavity, and patches of pus in the liver, although the gallbladder and kidney
appeared to have septicemia, poisoning of the blood. The peritonitis and
septicemia were traced to have been caused through infection by the foreign
object which has been lodged in the intra-vaginal canal of Rosario. The
foreign object which was already agreed upon by both parties that it is a
75
portion of a sexual vibrator was extracted from the vagina of Rosario while
under anesthesia. Said object was coated with tissues, pus and blood. Dr.
Rosete gave it to the assisting surgical nurse for safekeeping and gave
instructions to release it to the authorized person. This object was shown by
the nurse to Dr. Leo Cruz. Dr. Rosete considered the operation successful
and the patient was alive when he left her under Dr. Cruz. Dr. Cruz stayed
with said patient in the ward for about 30 minutes and thereafter he left. The
following day, Rosario got serious and it was Dr. Leo Cruz who pronounced
her death at 2:00 to 2:15 in the afternoon of May 20, 1987.
Thereafter, a death certificate was prepared under the direction of Dr. Cruz
which was indicated therein that the cause of death was cardio-respiratory
arrest, secondary to septicemia caused by the foreign object lodged in the
intra uteral vaginal canal of Rosario Baluyot.
The foreign object was washed by nurse Obedina, then placed it in a
transparent small jar and labelled "Rosario Baluyot". Jessica Herrera asked
the nurse for the foreign object, and it was given to her under proper receipt.
Herrera then showed the same to the persons who helped financially
Rosario's case, and afterwards she gave it to Sister Eva Palencia. Sis.
Palencia was in custody of the said object until Mr. Salonga came and asked
her for the object.
After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar
Alcantara to ask him in locating the relatives of Rosario. They were able to
trace Rosario's grandmother, Mrs. Maria Burgos Turla, and informed her
that her granddaughter was already dead and lying in state at St. Martin
Funeral Parlor. Mrs. Turla went there with her son, who shouldered all the
burial expenses for Rosario.
Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her
residence at Sta. Rita and asked her if she was interested in filing a case
against the person who caused the death of her granddaughter. Of course
she agreed. Hence, she was brought to the Fiscal's (City) Office to file the
same.
After the case was filed against the herein accused, Atty. Edmundo Legaspi
with his messenger came to her house and told her that the accused was
willing to settle the case, but that accused Ritter had only P15,000.00. The
old woman did not accept it because she knows that the accused is liable to
pay damages anyway. After that, she received a letter from Atty. Legaspi
telling her to get a lawyer for her case. By this time, Mrs. Turla, who
wanted to have the case settled once and for all giving the reason that she
can no longer bear the situation, sent her nephew, Conrado Marcelo to Atty.
Legaspi. Her nephew obliged and told her that she will be paid at the office
of Atty. Legaspi. On a date not clear in the records, she went with her
nephew Conrado Marcelo, and Roberto Sundiam, an assistant barangay
tanod of Sta. Rita, and while they were there, she saw Ritter arrive at the
law office. Ritter and Atty. Legaspi talked at the office near the bathroom,
and thereafter Ritter left. After he left, Atty. Legaspi told Rosario's
grandmother that they are willing to settle for P20,000.00, but that Ritter
left only P15,000.00, so she received the money with the understanding that
there was a balance of P5,000.00 yet. She was made to sign a statement, and
she was asked to change the age of her granddaughter Rosario. With the
document prepared, she and the lawyer's messenger went to the Fiscal's
office to have it subscribed, and was subscribed before an assistant city
fiscal. But the balance of P5,000.00 was not paid, because later on Atty.
Legaspi became the OIC of Olongapo City and he could no longer attend to
it. Atty. Legaspi, during one of the hearings before the Court even
apologized to her.
As to the case, P/Cpl. Marino Victoria, as criminal investigator of Station
"A", was directed by Col. Daos, Station Commander of the Olongapo Police
Department to make a follow up of the case of Rosario Baluyot. On the
other hand, since the suspect who inserted the foreign object inside
Rosario's vagina was said to be an American, the NISRA Subic Naval Base
also conducted its investigation headed by criminal investigator Agent
Conrado Salonga. Coordinating with the local police and with Sister Eva
Palencia, since Rosario was a street child at Magsaysay Drive, they rounded
up about 43 street children and from some of them they learned that Rosario
Baluyot was with Jessie Ramirez with an American at the MGM Hotel
when the foreign object was inserted in her vagina. After finding Jessie
Ramirez, they asked him about Rosario Baluyot. They found out that indeed
he was with Rosario Baluyot sometime before Christmas of 1986 with an
American, who brought them to the said hotel. Jessie Ramirez was taken
inside the U.S. Naval Base, Olongapo City and took his statement. Then he
was brought to Mr. Edward Lee Bungarner, a cartographer, and out of the
description supplied by Ramirez, a composite drawing was photocopied and
copies thereof were distributed to the local police and to the sentries at the
gate of the U.S. Naval Base. Some American servicemen who had
resemblance to the composite drawing were photographed and these were
shown to Jessie Ramirez, but the result was negative. Aside from the
physical description by Ramirez about the appearance of the suspect, he
also described him as having the mannerisms of a homo-sexual.
After obtaining information that foreign homo-sexuals frequented Ermita,
Manila, and thinking that the so-called American may be European or
Australian national, the team composed of Agent Salonga, Mr. Heinsell,
P/Cpl. Marino Victoria and P/Cpl. Andres Montaon, Jessie Ramirez and
Michael Johnson, another juvenile, proceeded to Manila. They first went to
the Manila NISRA Office, and thereafter checked in a hotel. That was on
76
September 23, 1987. On the first night, they went to Luneta Park where
foreign homo-sexuals were said to be frequenting, but the result was
negative. Then on September 25, at about 11:00 p.m., while they were
standing at the corner of A. Mabini and M.H. del Pilar Street, a male
caucasian who looked like a homo-sexual stopped by admiringly infront of
the two (2) juveniles, Ramirez and Johnson. Jessie Ramirez then reported to
Mr. Salonga that this foreigner had a similarity with the American suspect,
so the two minors were instructed to follow the foreigner and to strike a
conversation. They did, and when they returned, Jessie Ramirez told them
that indeed the said foreigner was the one who brought him and Rosario
Baluyot to the MGM Hotel. Bobby Salonga told Ramirez that this foreigner
had no beard while the one previously described by Ramirez had a beard.
Jessie Ramirez told them that maybe he have just shaved it off. The said
caucasian then entered a bar, and after several minutes he came out, and
Jessie Ramirez upon his signal with his thumbs up, as a signal to confirm
that the said foreigner is the suspect, arrested Ritter and brought him to the
Manila Western Police District. It could be mentioned at this stage that in
this operation they were accompanied by two (2) policemen from the
Western Police District. The foreigner was hand cuffed and was told that he
was a suspect for Rape with Homicide. After the arrest, they first went to
the pension house of the suspect in Ermita, Manila to get his shoulder bag
which contained his personal belongings, and from there they brought him
to the Western Police Department. At the said police headquarters, they
were allowed a permissive search by the foreigner of his clutch bag and his
small shoulder bag and confiscated his passport, I.D., 3 inhalers, money in
the form of dollars and travellers checks amounting about $1,500.00 and
about P100.00, all duly receipted for. From the passport they learned that
the suspect's name was Heinrich Stefan Ritter, an Austrian national. During
the questioning of Hitter, Salonga and his team already left the headquarters
and went to their hotel, because at this time Jessie Ramirez was already
shaking with fear after he identified the accused.
The following day, they brought the accused to Olongapo and was detained
at the Olongapo City Jail. The case for Rape with Homicide was filed
against him at the City Fiscal of Olongapo. At the preliminary investigation,
accused was assisted by his own counsel. The private complainant was
Maria Burgos Turla because it was she who had custody of Rosario Baluyot
after her mother Anita Burgos died on January 12, 1982, and their father
Policarpio Baluyot had left them under her custody. When this case was
filed, the father's whereabouts was unknown, and he only appeared when
the trial of this case before the Court was already in progress. And upon his
(Policarpio Baluyot) own admission, he only learned about the death of his
daughter Rosario Baluyot from the newspaper, long after Rosario was
already gone.
The defense tried to dislodge the case by claiming that there could be no
crime of Rape with Homicide because the suspect was described as an
American while Ritter is an Austrian. Also advanced by the defense is that,
it is a case of mistaken identity. That Rosario Baluyot was at the time of the
commission of the offense, already more than 13 years old, she having been
born on December 26, 1973 as per baptismal certificate, wherein it appears
that Rosario Baluyot was baptized on December 25, 1974 and was born on
December 26, 1973 as testified to by Fr. Roque Villanueva of St. James
Parish Church who issued the Baptismal Certificate, having custody and
possession of the book of baptism for the year 1975, but admitted that he
had no personal knowledge about the matters or entries entered therein.
Likewise, the defense's stand is that the accused cannot be liable for
Homicide because a vibrator is not a weapon of death but it is a thing for the
purpose of giving sexual pleasure, and that the death of Rosario Baluyot
was due to the incompetence of Dr. Rosete, the surgeon and Director of the
Olongapo City General Hospital, who operated on her. (Rollo, pp. 109-116)
On March 29, 1989, the trial court rendered its decision. The dispositive portion of
the decision reads as follows:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds,
that the prosecution has established the GUILT of the accused beyond
reasonable doubt for the crime of Rape with Homicide as defined and
penalized in Art. 335 No. 3 of the Revised Penal Code, and hereby
sentences HEINRICH STEFAN RITTER to a penalty of RECLUSION
PERPETUA, to indemnify the heirs of the deceased in the sum of SIXTY
THOUSAND PESOS (P60,000.00) Philippine Currency, and TEN
THOUSAND PESOS (Pl0,000.00) by way of attorney's fees to the private
prosecutors and to pay the costs. (Rollo, p. 126)
The accused now comes to this Court on the following assigned errors allegedly
committed by the court:
I
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS
DISCRETION IN FINDING THAT THE ALLEGED OFFENSE WAS
COMMITTED ON OCTOBER 10, 1986 AND THAT IT WAS
ACCUSED-APPELLANT WHO COMMITTED IT.
II
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS
DISCRETION IN FINDING THAT ROSARIO BALUYOT WAS LESS
THAN TWELVE (12) YEARS OLD WHEN THE ALLEGED OFFENSE
77
 WAS COMMITTED AND IN HOLDING THAT THERE WAS RAPE
WITH HOMICIDE.
III
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS
DISCRETION IN GIVING CREDENCE TO AND NOT REJECTING
THE PROSECUTION'S EVIDENCE AND IN NOT UPHOLDING THAT
OF THE DEFENSE AND ACQUITTING THE ACCUSED.
Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction
only if the guilt of the accused has been proved beyond reasonable doubt, it
behooves us to exert the most painstaking effort to examine the records in the light of
the arguments of both parties if only to satisfy judicial conscience that the appellant
indeed committed the criminal act (See People v. Villapaña, 161 SCRA 73 [1988]).
The appellant was convicted by the trial court of the crime of rape with homicide of a
young girl who died after the rape because of a foreign object, believed to be a
sexual vibrator, left inside her vagina.
As stated by the trial court one crucial issue in this case is the age of the victim—
whether or not Rosario Baluyot was less than twelve (12) years old at the time the
alleged incident happened on October 10, 1986. The age is important in determining
whether or not there was statutory rape, Article 335 of the Revised Penal Code
defines the third type of rape as having carnal knowledge of a woman under 12 years
of age, in which case force, intimidation, deprivation of reason or unconscious state
do not have to be present.
The trial court found that Rosario was below 12 years old when she was sexually
abused by the accused and, therefore, rape was committed inspite of the absence of
force or intimidation.
In resolving the issue, the trial court put great weight on the testimonies of the
victim's grandmother and father who testified that she was born on December 22,
1975. These oral declarations were admitted pursuant to then Rule 130, Section 33 of
the Rules of Court where, in the absence of a birth certificate, the act or declaration
about pedigree may be received in evidence on any notable fact in the life of a
member of the family. Since birth is a matter of pedigree within the rule which
permits the admission of hearsay evidence, oral declarations are therefore admissible
as proof of birth (Decision, p. 54).
The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth
date because her brother died in Pampanga and her daughter, Anita (Rosario's
mother) was the only one who failed to attend the funeral because the latter has just
given birth allegedly to Rosario (T.S.N. p. 8, Jan. 13, 1988).
The father likewise testified that as far as he could remember, Rosario was born on
December 22, 1975 (T.S.N., p. 4, Jan. 27, 1988) and he was certain that Rosario was
more than one (1) year old when she was baptized (T.S.N., p. 45, Jan. 27, 1988).
The trial court further added that their testimony is supported by the clinical record
and the death certificate indicating that she was 12 years old when she was admitted
at the Olongapo City General Hospital for treatment. The age was supplied by
Rosario's alleged guardian, Gaspar Alcantara to the hospital's clinical record clerk,
Lorna Limos. Fe Israel, a social worker who interviewed Rosario Baluyot also
testified that she was told by Rosario that she was 12 years old. The trial court
accepted this as adequate evidence of the truth. Moreover, Jessie Ramirez, the
principal witness in this case declared that he was born on September 5, 1973 and
that he was older than Rosario Baluyot. Therefore, since he was 13 years old in 1986,
Rosario must have been less than 12 yeas old in 1986. (Decision, p. 55)
The trial court concluded that the oral declarations of the grandmother and father
supported by other independent evidence such as the clinical record, death certificate
and the testimonies of Fe Israel and Jessie Ramirez, rendered the baptismal
certificate presented by the defense without any probative or evidentiary value.
(Decision, p. 55)
The findings of the trial court with respect to Rosario Baluyot's age cannot stand the
application of evidentiary rules.
The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the
1989 Revised Rules of Court).
For oral evidence to be admissible under this Rule, the requisites are:
(1) That the declarant must be dead or outside of the Philippines or unable
to testify;
(2) That pedigree is in issue;
(3) That the person whose pedigree is in question must be related to the
declarant by birth or marriage;
(4) That the declaration must be made before the controversy occurred
or ante litem motam; and
78
 (5) That the relationship between the declarant and the person whose
pedigree is in question must as a general rule be shown by evidence other
than such act or declaration.
These requirements were not satisfied by the evidence for the prosecution nor do the
declarations fall within the purview of the rule.
The victim's grandmother and father whose declarations regarding Rosario's age
were admitted by the trial court are both alive, in the Philippines and able to testify
as they both did testify in court. Their declarations were made at the trial which is
certainly not before the controversy arose. The other witnesses who testified on
Rosario's age are not members of the victim's family. The testimonies of Rosario's
relatives must be weighed according to their own personal knowledge of what
happened and not as hearsay evidence on matters of family history.
At this point, we find the evidence regarding Rosario's age of doubtful value.
The trial court justified the admissibility of the grandmother's testimony pursuant to
the ruling laid down in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court
accepted the testimony of the mother that her daughter was 14 years old and 4
months old. The mother stated that she knew the age because the child was born
about the time of the cholera epidemic of 1889. This was not hearsay, but came from
one who had direct knowledge of the child's birth.
It is however, equally true that human memory on dates or days is frail and unless
the day is an extraordinary or unusual one for the witness, there is no reasonable
assurance of its correctness. (People v. Dasig 93 Phil. 618, 632 [1953])
With respect to the grandmother's testimony, the date of the brother's death or funeral
was never established, which indicates that the day was rather insignificant to be
remembered. The father's declaration is likewise not entirely reliable. His testimony
in court does not at all show that he had direct knowledge of his daughter's birth. He
was certain though that she was more than one (1) year old at the time she was
baptized.
The other witnesses are not at all competent to testify on the victim's age, nor was
there any basis shown to establish their competence for the purpose. The clinical
records were based on Gaspar Alcantara's incompetent information given when he
brought the victim to the hospital. Alcantara came to know her only about a year
before her death. He had absolutely no knowledge about the circumstances of
Rosario's birth. The death certificate relied upon by the trial court was merely based
on the clinical records. It is even less reliable as a record of birth.
All the evidence presented by the prosecution showing that Rosario Baluyot was less
than 12 years old at the time of the alleged incident are not adequate to establish the
exact date of birth, much less offset a documentary record showing a different date.
The defense presented Rosario Baluyot's baptismal certificate which the trial court
rejected as being hearsay and of no value. As against the oral declarations made by
interested witnesses establishing Rosario's age to be less than 12 years old, the
evidence on record is more convincing and worthy of belief. (See Filinvest Land, Inc.
v. Court of Appeals, 183 SCRA 664, 673 [1990]).
By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court
to the St. James Parish Church, Subic, Zambales, Fr. Roque Villanueva a Roman
Catholic priest testified and stated that he is the head of said parish. He brought with
him Baptismal Register No. 9 entitled "Liber Baptisnorum", a latin term for
baptismal book or record. On page 151, No. 3 of the said Registry Book, there
appears the name of Rosario Baluyot who was baptized on December 25, 1974, and
born on December 26, 1973. Parents are Policarpio Baluyot and Anita Burgos,
residents of Subic, Zambales. Edita R. Milan appears as the only sponsor with
Olongapo City as her address.
In the case of Macadangdang v. Court of appeals (100 SCRA 73 [1980]), we held
that:
xxx xxx xxx
In our jurisprudence, this Court has been more definite in its
pronouncements on the value of baptismal certificates. It thus ruled that
while baptismal and marriage certificates may be considered public
documents, they are evidence only to prove the administration of the
sacraments on the dates therein specified—but not the veracity of the status
or declarations made therein with respect to his kinsfolk and/or citizenship
(Paa v. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus v.
Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal
certificate is conclusive proof only of the baptism administered, in
conformity with the rites of the Catholic Church by the priest who baptized
the child, but it does not prove the veracity of the declarations and
statements contained in the certificate that concern the relationship of the
person baptized. Such declarations and statements, in order that their truth
may be admitted, must indispensably be shown by proof recognized by law.
(At pp. 84-85)
In the same light, the entries made in the Registry Book may be considered as entries
made in the course of business under Section 43 of Rule 130, which is an exception
to the hearsay rule. The baptisms administered by the church are one of its
transactions in the exercise of ecclesiastical duties and recorded in a book of the
79
church during the course of its business. (U.S. v. de Vera, 28 Phil. 105 [1914] Hence,
the certificate (Exhibit "22") presented by the defense that Rosario Baluyot was
baptized on December 25, 1974 may be admitted in evidence as proof of baptism.
Policarpio Baluyot, the victim's father testified that he had in his possession a
baptismal certificate different from the one presented in court. However, no other
baptismal record was ever presented to prove a date different from that brought by
the official custodian. Since the baptismal certificate states that Rosario was baptized
on December 25, 1974, it is therefore highly improbable that Rosario could have
been born on December 22, 1975. She could not have been baptized before she was
born. Exhibit "22" may be proof only of baptism but it puts a lie to the declaration
that Rosario was born in 1975. With the father's assertion that Rosario was more than
one (1) year old when she was baptized, we are then more inclined to agree that
Rosario was born in 1973 as stated in the Baptismal Registry.
In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated:
xxx xxx xxx
. . . Although no birth certificate was presented because her birth had
allegedly not been registered, her baptismal certificate, coupled by her
mother's testimony, was sufficient to establish that Mary Rose was below
twelve years old when she was violated by Rebancos. (At. p. 426)
Unfortunately, in the instant case, nobody could corroborate the date on a more
reliable document as to Rosario's birth which could serve as sufficient proof that she
was born on December 26, 1973. Therefore, she was more than 12 years old at the
time of the alleged incident on October 10, 1986.
Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of
proof lies on the prosecution to prove that Rosario was less than 12 years old at the
time of the alleged incident in a charge of statutory rape. The prosecution failed in
this respect.
Since Rosario was not established to have been under 12 years of age at the time of
the alleged sexual violation, it was necessary to prove that the usual elements of rape
were present; i.e. that there was force of intimidation or that she was deprived of
reason or otherwise unconscious in accordance with Article 335 of the Revised Penal
Code.
We agree with the defense that there was no proof of such facts. On the contrary, the
evidence shows that Rosario submitted herself to the sexual advances of the
appellant. In fact, she appears to have consented to the act as she was paid P300.00
the next morning while her companion, Jessie Ramirez was paid P200.00 (T.S.N. p.
50, January 6, 1988). The environmental circumstances coupled with the testimonies
and evidence presented in court clearly give the impression that Rosario Baluyot, a
poor street child, was a prostitute inspite of her tender age. Circumstances in life may
have forced her to submit to sex at such a young age but the circumstances do not
come under the purview of force or intimidation needed to convict for rape.
In view of these clear facts which the prosecution failed to refute, no rape was
committed. But was Ritter guilty of homicide?
The trial court justified its ruling by saying that the death of the victim was a
consequence of the insertion of the foreign object into the victim's vagina by the
appellant.
We now ask "Was the appellant responsible for the sexual vibrator left inside
Rosario's vagina which led to her death?
The trial court convicted the accused based on circumstantial evidence.
Unfortunately, the circumstances are capable of varying interpretations and are not
enough to justify conviction.
Jessie Ramirez, the principal witness did not actually see the object inserted in
Rosario's vagina. Neither could he identify the object (Exhibit "C-2") taken from
Rosario as the same object which the appellant was holding at that time of the
alleged incident.
In his sworn statement given to the police investigator on September 4, 1987, he
answered that:
xxx xxx xxx
T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin
na inilabas ng kano sa kanyang daladalahan kung mayroon man?
S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at
napansin ko na may inilabas siya sa kanyang bag na parang vicks inhaler, na
kanyang inamoy-amoy habang nasa otel kami at pagkatapos niya ay
inilapag niya sa lamiseta.
T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng
Amerikano?
S Ito ay may habang tatlong pulgada at ang takip nito ay may habang
dalawang pulgada. Iyong takip ay bilog na patulis at may tabang mga
kalahating pulgada. Hindi ko napansin ang hugis ng dulo ng bagay na may
takip dahil natatakpan ng kamay at ilong ng Amerikano.
80
 T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang
larawang ito at sabihin mo nga sa akin kung makikilala mo ang mga bagay
na nasa larawang ito, na may kinalaman sa nakita mong kinuha ng
Amerikano sa kanyang bag?
S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad
noong takip ng bagay na inilabas ng Amerikano sa kanyang bag. Kaya lang
ay bakit naging kulay asul gayong ng makita ko ito ay kulay puti? (Exhibit
"A", p. 2; Emphasis Supplied)
Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the
appellant does not deny having possessed at that time. He was certain that the object
was white. (T.S.N. p. 91, January 6, 1988)
Later, Ramirez retracted and corrected himself. He said that it was grayish in color
with color blue (Medyo kulay abo na may kulay na parang blue). (T.S.N. p. 92,
January 6, 1988) The inconsistency of the witness' testimony casts doubt as to the
veracity of the statements made especially when he answered on additional cross-
examination that the reason why he concluded that Exhibit "C-2" was the same
object being held by Ritter was because it was the only one shown to him by the
prosecution (T.S.N. pp. 109-110, January 6, 1988). Jessie Ramirez was not all certain
about the sexual vibrator because he did not actually see it in the possession of the
appellant.
What he merely remembers is the revelation made by Rosario the next morning that
the foreigner inserted something inside her vagina. The trial court admitted such
statement as part of the res gestae. In a strained effort to accept such statement as
part of res gestae, the trial court focused the test of admissibility on the lapse of time
between the event and the utterance. For the average 13 years old, the insertion of a
mechanical device or anything for that matter into the vagina of a young girl is
undoubtedly startling. For Rosario and Jessie, however, there must be more evidence
to show that the statement, given after a night's sleep had intervened, was given
instinctively because the event was so startling Res gestae does not apply. (Section
42, Rule 130, Rules of Court)
Even if it were established that the appellant did insert something inside Rosario's
vagina, the evidence is still not adequate to impute the death of Rosario to the
appellant's alleged act.
Jessie Ramirez testified that Rosario was able to remove the object inserted in her
vagina. We quote:
Q Now, you also stated on direct examination that later on Rosario even
categorically admitted to you that she was already able to remove the object
allegedly inserted inside her vagina, is that correct?
A Yes, sir.
xxx xxx xxx
ATTY. CARAAN:
Q Will you kindly tell to this Honorable Court the exact words used by
Rosario Baluyot later on when you met her when you asked her and when
she told you that she was already able to remove that object from her
vagina?
A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already
removed?" And she answered, "Yes, it was removed." But the same night,
she again complained of pain of her stomach. She sent one of her friends to
call for me. And as a matter of fact, Tomboy was uttering defamatory words
against me as she was groaning in pain. (TSN, Jan. 6,1988, pp. 72-73)
This encounter happened on the night of the day following the day after both
children were invited by the foreigner to the hotel. (T.S.N. p. 73, January 6, 1988).
Rosario was said to be groaning in pain so we can just imagine the distress she was
undergoing at this point in time. If the device inserted by the appellant caused the
pain, it is highly inconceivable how she was able to endure the pain and discomfort
until May, 1987, seven (7) months after the alleged incident. Evidence must not only
proceed from the mouth of a credible witness but it must be credible in itself such as
the common experience and observation of mankind can approve as probable under
the circumstances. (People vs. Patog, 144 SCRA 429 [1986]).
At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro
Solis, a witness for the defense is considered an expert witness. (A Doctor of
Medicine and a graduate of the State University in 1940, a degree of Bachelor of
Laws and member of the Bar 1949, and a graduate of the Institute of Criminology
University. He was awarded Post Graduate Diploma in Criminology in 1963, and
also a graduate of United Nations Asia and Far East Asia Institute on the Prevention
of Crimes in Tokyo Japan 1965. He was appointed Medico Legal Officer of the
National Bureau of Investigation in 1940 until 1944. He became Chief Medico Legal
Officer in 1970 and became the Deputy Director of the NBI up to 1984. He is at
present a Professorial Lecturer on Legal Medicine at the UP, FEU, UE, and Fatima
College of Medicine; a Medico Legal Consultant of the PGH Medical Center, Makati
Medical Center, UERM Medical Center, MCU Medical Center. He has been with the
NBI for 43 years. He has attended no less than 13 conferences abroad. He is the
author of the textbooks entitled "Legal Medicine" and "Medical Jurisprudence".)
With his impressive legal and medical background, his testimony is too authoritative
to ignore. We quote the pertinent portions of his testimony:
81
Q Now Dr. Solis, would you kindly go over this object marked as Exh. "C-
2" which object was described as a part of a sexual vibrator battery
operated. Now, given this kind of object, would you kindly tell us what
would be the probable effect upon a 12 years old girl when it is inserted into
her vagina?
A Well, this vibrator must be considered a foreign body placed into a
human being and as such be considered a foreign object. As a foreign
object, the tendency of the body may be: No. 1—expel the foreign body—
No. 2.—The tendency of the body is to react to that foreign body. One of
the reactions that maybe manifested by the person wherein such foreign
body is concerned is to cover the foreign body with human tissue, in a way
to avoid its further injury to the body.
Now, the second reaction is irritation thereby producing certain manifest
symptoms and changes in the area where the foreign body is located.
In severe cases, the symptoms manifestation might not only be localized but
may be felt all over the body, we call it systemic reaction. Now, considering
the fact that this foreign body as shown to me is already not complete, this
shows exposure of its different parts for the body to react. If there is
mechanism to cause the foreign body to vibrate, there must be some sort of
power from within and that power must be a dry cell battery. [The]
composition of the battery are, manganese dioxide ammonium, salts, water
and any substance that will cause current flow. All of these substances are
irritants including areas of the container and as such, the primary reaction of
the body is to cause irritation on the tissues, thereby inflammatory changes
develop and in all likelihood, aside from those inflammatory changes would
be a supervening infection in a way that the whole generative organ of the
woman will suffer from diseased process causing her the systemic reaction
like fever, swelling of the area, and other systemic symptoms. . . . . (TSN.,
pp. 13-15, October 19,1988)
xxx xxx xxx
Q Now, given this object, how long would it take, Doctor before any
reaction such as an infection would set in, how many days after the insertion
of this object in the vagina of a 12 year old girl?
A In the example given to me, considering that one of the ends is exposed,
in a way that vaginal secretion has more chance to get in, well, liberation of
this irritant chemicals would be enhanced and therefore in a shorter period
of time, there being this vaginal reaction.
Q How many days or weeks would you say would that follow after the
insertion?
A As I said, with my experience at the NBI, insertion of any foreign body in
the vaginal canal usually developed within, a period of two (2) weeks . . .
xxx xxx xxx
Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator
was inserted in her vagina on October 10, 1986 and she was operated on, on
May 19, 1987 the following year, so it took more than 7 months before this
was extracted, would you say that it will take that long before any adverse
infection could set in inside the vagina?
A Infection and inflamatory changes will develop in a shorter time. (TSN.,
Oct. 19,1988, p. 18)
xxx xxx xxx
Q When you said shorter, how long would that be, Doctor?
A As I said, in my personal experience, hair pins, cottonballs and even this
lipstick of women usually, there are only about two (2) weeks time that the
patient suffer some abnormal symptoms.
Q Now, considering that this is a bigger object to the object that you
mentioned, this object has a shorter time?
A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)
The trial court, however, ruled that "there is no hard and fast rule as to the time frame
wherein infection sets in upon insertion of a foreign body in the vagina canal. For Dr.
Solis, the time frame is not more than 10 months, and this case is still within the said
time frame."
A more generous time interval may be allowed in non-criminal cases. But where an
accused is facing a penalty of reclusion perpetua, the evidence against him cannot be
based on probabilities which are less likely than those probabilities which favor him.
It should be clarified that the time frame depends upon the kind of foreign body
lodged inside the body. An examination of the object gave the following results:
82
 (1) Color: Blue
Size: (a) Circumference—3.031
inches (b) Length—approximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.
(2) The specimen can be electrically operated by means of a battery as per
certification dated 01 June 1988, signed by Mr. Rodolfo D. Mercuric,
Shipboard Electrical Systems Mechanics, Foreman II, SRF Shop 51, Subic
(see attached certification).
(3) No comparative examination was made on specimen #1 and vibrator
depicted in the catalog because no actual physical dimensions and/or
mechanical characteristics were shown in the catalog. (Exhibit "LL")
The vibrator end was further subjected to a macro-photographic examination on the
open end portion which revealed the following:
Result of Examination
Macro-photographic examination on the open end portion of specimen #1
shows the following inscription:
MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit "MM")
From the above results, the subject object is certainly not considered as inert and
based on Dr. Solis' testimony, it is more likely that infection should set in much
earlier. Considering also that the object was inserted inside the vagina which is part
of the generative organ of a woman, an organ which is lined with a very thin layer of
membrane with plenty of blood supply, this part of the body is more susceptible to
infection. (T.S.N. p. 34, October 19, 1988)
The truth of Dr. Solis' testimony is more probable under the circumstances of the
case. We see no reason why his opinions qualified by training and experience should
not be controlling and binding upon the Court in the determination of guilt beyond
reasonable doubt. (People v. Tolentino, 166 SCRA 469 [1988]).
Dr. Barcinal, another witness for the defense also testified that he examined Rosario
Baluyot on May 17, 1986 as a referral patient from the Department of Surgery to
give an OB-GYN clearance to the patient prior to operation. (T.S.N. p. 6, September
28, 1988)
Q And how many times did you examine this patient Rosario Baluyot on
that day?
A I examined her twice on that day.
Q The first time that you examined her, what is the result of your findings,
if any?
A My first examination, I examined the patient inside the delivery room.
The patient was brought to the delivery room wheel-chaired then from the
wheel chair, the patient was ambigatory (sic). She was able to walk from
the door to the examining table. On examination, the patient is conscious,
she was fairly nourished, fairly developed, she had fever, she was
uncooperative at that time and examination deals more on the abdomen
which shows slightly distended abdomen with muscle guarding with
tenderness all over, with maximum tenderness over the hypogastric area.
(T.S.N. p. 5, September 28, 1988)
xxx xxx xxx
Q What about your second examination to the patient, what was your
findings, if any?
A In my second examination, I repeated the internal examination wherein I
placed my index finger and middle finger inside the vagina of the patient
and was able to palpate a hard object. After which, I made a speculum
examination wherein I was able to visualize the inner portion of the vaginal
canal, there I saw purulent foul smelling, blood tints, discharge in the
vaginal canal and a foreign body invaded on the posterior part of the vaginal
canal.
xxx xxx xxx
A I referred back to Dr. Fernandez about my findings and he asked me to
try to remove the said foreign object by the use of forceps which I tried to
do so also but I failed to extract the same.
Q All this time that you were examining the patient Rosario Baluyot both in
the first and second instance, Rosario Baluyot was conscious and were you
able to talk to her when you were examining her?
A Yes, sir.
83
Q And did you ask her why there is a foreign object lodge inside her vagina?
A Yes, Sir I asked her.
Q And what did she tell you, if any?
A She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG
NAGLAGAY NITO."
Q Did she also tell you when, this Negro who used her and who inserted and
placed the foreign object on her vagina?
A Yes, Sir I asked her and she said he used me three (3) months ago from the
time I examined her.
Q Now, you said that you referred the patient to the ward, what happened
next with your patient?
A To my knowledge, the patient is already scheduled on operation on that
date.
Q Meaning, May 17, 1987?
A Yes, Sir I was presuming that the patient would undergo surgery after
that?
(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)
The trial court debunked Dr. Barcinals testimony considering Rosario's condition at
that time. It ruled that it is inconceivable that she would be striking a normal
conversation with the doctors and would be sitting on the examination table since
Gaspar Alcantara stated that when he brought Rosario Baluyot to the hospital, she
was unconscious and writhing in pain.
It was not improbable for Rosario Baluyot to still be conscious and ambulant at that
time because there were several instances testified to by different witnesses that she
was still able to talk prior to her operation:
(1) Fe Israel, a witness for the prosecution and a member of the Olongapo Catholic
Charismatic Renewal Movement testified that as a member of this group she visits
indigent children in the hospital every Saturday and after office hours on working
days.
On the Saturday prior to Rosario's death which was May 17, she was still able to talk
to Rosario Baluyot. In fact, one of her groupmates helped Rosario go to the comfort
room to urinate. (T.S.N., pp. 16-19, May 25, 1988)
(2) Angelita Amulong, a witness for the defense is another para social worker who
worked at Pope John 23rd Community Center under Sister Eva Palencia. In one of
her hospital visits, she encountered Rosario Baluyot in the month of May, 1987. She
actually saw a child who happened to be Rosario Baluyot seated on the cement floor
and when she asked why she was seated there, she was told that it was too hot in the
bed. She saw Rosario Baluyot for about 2 or 3 days successively. (T.S.N. pp. 10-13,
September 7, 1988)
(3) Gaspar Alcantara, the person who brought Rosario to the hospital actually
testified that she was conscious (T.S.N. p. 36, September 14, 1988) but writhing in
pain. He took pity on her so he brought her to the hospital (T.S.N. p. 12, September
14, 1988)
From the above testimonies, it is clear that Rosario was still conscious and could still
answer questions asked of her although she was complaining of stomach pains.
Unfortunately, the medical attention given to her failed to halt the aggravation of her
condition. The operation on May 19 was too late.
Rosario died because of septicemia, which in layman's language is blood poisoning,
and peritonitis, which is massive infection, in the abdominal cavity caused by the
foreign object or the cut sexual vibrator lodged in the vagina of the victim. This led
to the infection from the uterus to the fallopian tubes and into the peritoneum and the
abdominal cavity.
The trial court convicted the accused citing the rationale of Article 4 of the RPC
He who is the cause of the cause is the cause of the evil caused.
But before the conviction is affirmed, we must first follow the rule as stated in the
case of Urbano vs. Intermediate Appellate Court (157 SCRA 1 [1988]) to wit:
The rule is that the death of the victim must be the direct,
natural and logical consequence of the wounds inflicted upon him by the
accused. And since we are dealing with a criminal conviction, the proof that
the accused caused the victim's death must convince a rational mind beyond
reasonable doubt. (Emphasis supplied)
In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that:
xxx xxx xxx
The basic principle in every criminal prosecution is that accusation is not
synonymous with guilt. The accused is presumed innocent until the contrary
is proved by the prosecution. If the prosecution fails, it fails utterly, even if
the defense is weak or, indeed, even if there is no defense at all. The
defendant faces the full panoply of state authority with all "The People of
the Philippines" arrayed against him. In a manner of speaking, he goes to
bat with all the bases loaded. The odds are heavily against him. It is
84
 important, therefore, to equalize the positions of the prosecution and the
defense by presuming the innocence of the accused until the state is able to
refute the presumption by proof of guilt beyond reasonable doubt. (At. p.
592)
The evidence for the accused maybe numerically less as against the number of
witnesses and preponderance of evidence presented by the prosecution but there is no
direct and convincing proof that the accused was responsible for the vibrator left
inside the victim's vagina which caused her death seven (7) months after its insertion.
What the prosecution managed to establish were mere circumstances which were not
sufficient to overcome the constitutional presumption of innocence. While
circumstantial evidence may suffice to support a conviction it is imperative, though,
that the following requisites should concur:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. (Rule 133, Sec. 4 Revised Rules of
Court)
For the well-entrenched rule in evidence is that "before conviction can be had upon
circumstantial evidence, the circumstances proved should constitute an unbroken
chain which leads to one fair and reasonable conclusion pointing to the defendant, to
the exclusion of all others, as the author of the crime (People v. Subano, 73 Phil. 692
[1942]; Emphasis supplied). It must fairly exclude every reasonable hypothesis of
innocence (Dorado v. Court of Appeals, 153 SCRA 420, 433 [1987]). In this case the
circumstantial evidence presented by the prosecution does not conclusively point to
the liability of the appellant for the crime charged. (People v. Tolentino, supra)
We are aware of the wide publicity given to the plight of Rosario Baluyot and how
her death exemplified starkly the daily terrors that most street children encounter as
they sell their bodies in order to survive. At an age when innocence and youthful joys
should preponderate in their lives, they experience life in its most heartless and
inhuman form. Instead of nothing more than gentle disappointments occupying their
young minds, they daily cope with tragedies that even adults should never be made
to carry.
It is with distressing reluctance that we have to seemingly set back the efforts of
Government to dramatize the death of Rosario Baluyot as a means of galvanizing the
nation to care for its street children. It would have meant a lot to social workers and
prosecutors alike if one pedophile-killer could be brought to justice so that his
example would arouse public concern, sufficient for the formulation and
implementation of meaningful remedies. However, we cannot convict on anything
less than proof beyond reasonable doubt. The protections of the Bill of Rights and
our criminal justice system are as much, if not more so, for the perverts and outcasts
of society as they are for normal, decent, and law-abiding people.
The requirement of proof which produces in an unprejudiced mind moral certainty or
conviction that the accused did commit the offense has not been satisfied.
By way of emphasis, we reiterate some of the factors arousing reasonable doubt:
1. The evidence on Rosario Baluyot's baptism creates reasonable doubt
about her being less than 12 years old when the carnal knowledge took
place. If the evidence for the prosecution is to be believed, she was not yet
born on the date she was baptized.
2. Since the proof of Rosario's being under 12 years of age is not
satisfactory, the prosecution has to prove force, intimidation, or deprivation
of reason in order to convict for rape. There is no such proof. In fact, the
evidence shows a willingness to submit to the sexual act for monetary
considerations.
3. The only witness to the fact of Ritter's placing a vibrator inside the vagina
of Rosario was Jessie Ramirez. This witness did not see Ritter insert the
vibrator. The morning after the insertion, he was only told by Rosario about
it. Two days later, he allegedly met Rosario who informed him that she was
able to remove the object. And yet, Ramirez testified that on the night of
that second encounter, he saw Rosario groaning because of pain in her
stomach. She was even hurling invectives. Ramirez' testimony is not only
hearsay, it is also contradictory.
4. It was improbable, according to expert medical testimony, for a foreign
object with active properties to cause pain, discomfort, and serious infection
only after seven months inside a young girl's vaginal canal. Infection would
have set in much earlier. Jessie Ramirez recalled that the incident happened
in December of 1986. (TSN., January 6, 1988, pp. 15-17) The evidence,
however shows that the appellant was not here in the Philippines that
December. As per the Commission on Immigration Arrival and Departure
Report, Heinrich Ritter arrived in the Philippines on October 7, 1986 and
left on October 12, 1986. He never returned until September 23, 1987
(Exhibits "DD" and "EE") The incident could have happened only in
October, but then it would have been highly improbable for the sexual
vibrator to stay inside the vagina for seven (7) months with the kind of
serious complications it creates.
5. The gynecologist who attended to Rosario during her hospital
confinement testified that she told him "Ginamit ako ng Negro at siya ang
naglagay nito." The accused is not a black.
85
Noteworthy is the fact that nothing was mentioned about Rosario's activities after the
hotel incident. Considering Dr. Barcinal's testimony indicating that she was "used"
by a "Negro" three (3) months prior to admission in the hospital and Rosario's
unfortunate profession, there is always the possibility that she could have allowed
herself to be violated by this perverse kind of sexual behavior where a vibrator or
vibrators were inserted into her vagina between October, 1986 and May, 1987.
Moreover, the long delay of seven (7) months after the incident in reporting the
alleged crime renders the evidence for the prosecution insufficient to establish
appellant's guilty connection with the requisite moral certainty. (SeePeople v. Mula
Cruz, 129 SCRA 156 [1984]).
The established facts do not entirely rule out the possibility that the appellant could
have inserted a foreign object inside Rosario's vagina. This object may have caused
her death. It is possible that the appellant could be the guilty person. However, the
Court cannot base an affirmance of conviction upon mere possibilities. Suspicions
and possibilities are not evidence and therefore should not be taken against the
accused. (People v. Tolentino, supra)
Well-established is the rule that every circumstance favorable to the accused should
be duly taken into account. This rule applies even to hardened criminals or those
whose bizarre behaviour violates the mores of civilized society. The evidence against
the accused must survive the test of reason. The strongest suspicion must not be
allowed to sway judgment. (See Sacay v. Sandiganbayan, 142 SCRA 593 [1986]). As
stated in the case of People v. Ng (142 SCRA 615 [1986]):
. . . [F]rom the earliest years of this Court, it has emphasized the rule that
reasonable doubt in criminal cases must be resolved in favor of the accused.
The requirement of proof beyond reasonable doubt calls for moral certainty
of guilt. It has been defined as meaning such proof "to the satisfaction of the
court, keeping in mind the presumption of innocence, as precludes every
reasonable hypothesis except that which it is given to support. It is not
sufficient for the proof to establish a probability, even though strong, that
the fact charged is more likely to be true than the contrary. It must establish
the truth of the fact to a reasonable and moral certainty—a certainty that
convinces and satisfies the reason and the conscience of those who are to act
upon it. (Moreno, Philippine Law Dictionary, 1972 Edition, p.
379, citing U.S. v. Reyes, 3 Phil. 3). . . .
In the instant case, since there are circumstances which prevent our being morally
certain of the guilt of the appellant, he is, therefore, entitled to an acquittal.
This notwithstanding, the Court can not ignore the acts of the appellant on the
children, Jessie Ramirez and Rosario Baluyot in October, 1986 at the MGM Hotel.
Inspite of his flat denials, we are convinced that he comes to this country not to look
at historical sights, enrich his intellect or indulge in legitimate pleasures but in order
to satisfy the urgings of a sick mind.
With the positive Identification and testimony by Jessie Ramirez that it was the
appellant who picked him and Rosario from among the children and invited them to
the hotel; and that in the hotel he was shown pictures of young boys like him and the
two masturbated each other, such actuations clearly show that the appellant is a
pedophile. When apprehended in Ermita, he was sizing up young children. Dr. Solis
defined pedophilia in his book entitled Legal Medicine, 1987 edition, as follows:
Pedophilia—A form of sexual perversion wherein a person has the
compulsive desire to have sexual intercourse with a child of either sex.
Children of various ages participate in sexual activities, like fellatio,
cunnilingus, fondling with sex organs, or anal sexual intercourse. Usually
committed by a homosexual between a man and a boy the latter being a
passive partner.
Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a
crime by itself. Pedophilia is clearly a behavior offensive to public morals and
violative of the declared policy of the state to promote and protect the physical,
moral, spiritual and social well-being of our youth. (Article II, Section 13, 1987
Constitution) (Harvey v. Defensor Santiago, 162 SCRA 840, 848 [1989]).
Pedophiles, especially thrill seeking aliens have no place in our country.
In this case, there is reasonable ground to believe that the appellant committed acts
injurious not only to Rosario Baluyot but also to the public good and domestic
tranquility of the people. The state has expressly committed itself to defend the right
of children to assistance and special protection from all forms of neglect, abuse,
cruelty, exploitation and other conditions prejudicial to their development. (Art. XV,
Section 3 [2] . . . (Harvey v. Santiago, supra). The appellant has abused Filipino
children, enticing them with money. The appellant should be expelled from the
country.
Furthermore, it does not necessarily follow that the appellant is also free from civil
liability which is impliedly instituted with the criminal action. (Rule III, Section 1)
The well-settled doctrine is that a person while not criminally liable, may still be
civilly liable. We reiterate what has been stated in Urbano v. IAC, supra.
. . . While the guilt of the accused in a criminal prosecution must be
established beyond reasonable doubt, only a preponderance of evidence is
required in a civil action for damages. (Article 29, Civil Code). The
judgment of acquittal extinguishes the civil liability of the accused only
when it includes a declaration that the facts from which the civil liability
might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).
86
 The reason for the provisions of Article 29 of the Civil Code, which
provides that the acquittal of the accused on the ground that his guilt has not
been proved beyond reasonable doubt does not necessarily exempt him
from civil liability for the same act or omission, has been explained by the
Code Commission as follows:
The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in
the Philippine legal system. It has given rise to numberless
instances of miscarriage of justice, where the acquittal was due to a
reasonable doubt in the mind of the court as to the guilt of the
accused. The reasoning followed is that inasmuch as the civil
responsibility is derived from the criminal offense, when the latter
is not proved, civil liability cannot be demanded.
This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning fails to
draw a clear line of demarcation between criminal liability and
civil responsibility, and to determine the logical result of the
distinction. The two liabilities are separate and distinct from each
other. One affects the social order and the other, private rights. One
is for the punishment or correction of the offender while the other
is for the reparation of damages suffered by the aggrieved party.
The two responsibilities are so different from each other that article
1813 of the present (Spanish) Civil Code reads thus: "There may
be a compromise upon the civil action arising from a crime; but the
public action for the imposition of the legal penalty shall not
thereby be extinguished." It is just and proper that, for the purposes
of the imprisonment of or fine upon the accused, the offense
should be proved beyond reasonable doubt. But for the purpose of
indemnifying the complaining party, why should the offense also
be proved beyond reasonable doubt? Is not the invasion or
violation of every private right to be proved only by a
preponderance of evidence? Is the right of the aggrieved person
any less private because the wrongful act is also punishable by the
criminal law?
For these reasons, the Commission recommends the adoption of
the reform under discussion. It will correct a serious defect in our
law. It will close up an inexhaustible source of injustice—a cause
for disillusionment on the part of the innumerable persons injured
or wronged.
Rosario Baluyot is a street child who ran away from her grandmother's
house.1âwphi1 Circumstances forced her to succumb and enter this unfortunate
profession. Nonetheless, she has left behind heirs who have certainly suffered mental
anguish, anxiety and moral shock by her sudden and incredulous death as reflected in
the records of the case. Though we are acquitting the appellant for the crime of rape
with homicide, we emphasize that we are not ruling that he is innocent or blameless.
It is only the constitutional presumption of innocence and the failure of the
prosecution to build an airtight case for conviction which saved him, not that the
facts of unlawful conduct do not exist. As earlier stated, there is the likelihood that
he did insert the vibrator whose end was left inside Rosario's vaginal canal and that
the vibrator may have caused her death. True, we cannot convict on probabilities or
possibilities but civil liability does not require proof beyond reasonable doubt. The
Court can order the payment of indemnity on the facts found in the records of this
case.
The appellant certainly committed acts contrary to morals, good customs, public
order or public policy (see Article 21 Civil Code). As earlier mentioned, the
appellant has abused Filipino children, enticing them with money. We can not
overstress the responsibility for proper behavior of all adults in the Philippines,
including the appellant towards young children. The sexual exploitation committed
by the appellant should not and can not be condoned. Thus, considering the
circumstances of the case, we are awarding damages to the heirs of Rosario Baluyot
in the amount of P30,000.00.
And finally, the Court deplores the lack of criminal laws which will adequately
protect street children from exploitation by pedophiles, pimps, and, perhaps, their
own parents or guardians who profit from the sale of young bodies. The provisions
on statutory rape and other related offenses were never intended for the relatively
recent influx of pedophiles taking advantage of rampant poverty among the forgotten
segments of our society. Newspaper and magazine articles, media exposes, college
dissertations, and other studies deal at length with this serious social problem but
pedophiles like the appellant will continue to enter the Philippines and foreign
publications catering to them will continue to advertise the availability of Filipino
street children unless the Government acts and acts soon. We have to acquit the
appellant because the Bill of Rights commands us to do so. We, however, express the
Court's concern about the problem of street children and the evils committed against
them. Something must be done about it.
WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant
HEINRICH STEFAN RITTER is ACQUITTED on grounds of reasonable doubt.
The appellant is ordered to pay the amount of P30,000.00 by way of moral and
exemplary damages to the heirs of Rosario Baluyot. The Commissioner of
Immigration and Deportation is hereby directed to institute proper deportation
proceedings against the appellant and to immediately expel him thereafter with
prejudice to re-entry into the country.
SO ORDERED.
87
EN BANC
[G.R. No. 135981. September 29, 2000]
PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.
RESOLUTION
PANGANIBAN, J.:
It is a hornbook rule that an appeal in criminal cases opens the entire
records to review. The Court may pass upon all relevant issues, including
those factual in nature and those that may not have been brought before
the trial court. This is true especially in cases involving the imposition of the
death penalty, in which the accused must be allowed to avail themselves of
all possible avenues for their defense. Even novel theories such as the
"battered woman syndrome," which is alleged to be equivalent to self-
defense, should be heard, given due consideration and ruled upon on the
merits, not rejected merely on technical or procedural grounds. Criminal
conviction must rest on proof of guilt beyond reasonable doubt.
The Case
For resolution by the Court is an Urgent Omnibus Motion filed by Appellant
Marivic Genosa y Isidro in connection with the automatic review of the
September 25, 1998 "Judgment"[1] of the Regional Trial Court (RTC) of
Ormoc City[2] in Criminal Case No. 5016-0. The RTC found her guilty of
parricide aggravated by treachery and sentenced her to death.
In an Information[3] dated November 14, 1996, Provincial Prosecutor
I Rosario D. Beleta charged appellant-movant with parricide allegedly
committed as follows:
"That on or about the 15th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent
to kill, with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon,
which the accused had provided herself for the purpose, [causing] the
following wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blown[ ]up & swollen w/ evident post- mortem lividity. Eyes
protruding from its sockets and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the
head, resulting [in] laceration of the brain, spontaneous rupture of the
blood vessels on the posterior surface of the brain, laceration of the dura
and meningeal vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."
After arraignment and trial, the court a quo promulgated its Judgment, the
dispositive portion of which reads:
"WHEREFORE, after all the foregoing being duly considered, the Court finds
the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of
the crime of parricide as provided under Article 246 of the Revised Penal
Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
generic aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages."
The Antecedents
Prior to the filing of her Appeal Brief, appellant submitted an Urgent
Omnibus Motion,[4] to bring "to the attention of the x x x Court certain facts
and circumstances which, if found valid, could warrant the setting aside of
[her] conviction and the imposition of the death penalty."
Appellant alleges that the trial court grievously erred in concluding that she
had lied about the means she employed in killing her husband. On the
contrary, she had consistently claimed that she had shot her husband. Yet
the trial judge simply ruled that the cause of his death was
"cardiopulmonary arrest secondary to severe intracranial hemorrhage due
to a depressed fracture of the occipital bone," which resulted from her
admitted act of "smashing" him with a pipe. Such conclusion was allegedly
unsupported by the evidence on record, which bore no forensic autopsy
report on the body of the victim.
Appellant further alleges that despite the evidence on record of repeated
and severe beatings she had suffered at the hands of her husband, the trial
court failed to appreciate her self-defense theory. She claims that under the
surrounding circumstances, her act of killing her husband was equivalent to
self-defense.Furthermore, she argues that if she "did not lie about how she
killed her husband, then she did not lie about the abuse she suffered at his
hands."
88
She thus prays for the following reliefs:[5]
"1. The Honorable Court allow an exhumation of the body of the victim, Ben
M. Genosa, and a re-examination of the cause of death.
2. The Honorable Court submit accused-appellant for examination by
qualified psychologists and psychiatrists of the Court to determine her state
of mind at the time of the killing of her spouse, Ben M. Genosa.
3. Thereafter, the Honorable Court allow the reports of the psychologists
and psychiatrists to form part of the records of the case for purposes of the
automatic review or, in the alternative, to allow a partial re-opening of the
case before a lower court in Metro Manila to admit the testimony of said
psychologists and psychiatrists."
On August 22, 2000, the solicitor general, on behalf of the State, filed his
Comment,[6] which substantially objected to the Motion on the ground that
appellant had not been "deprived of her right to due process, substantial or
procedural."
The Issues
In brief, the issues for our resolution are (1) whether the body of the victim
should be exhumed and reexamined in order to ascertain the cause of his
death, and (2) whether the appellant should be examined by qualified
psychologists or psychiatrists in order to determine her state of mind at the
time of the killing.
The Court's Ruling
The Court grants in part the Motion of appellant. We remand the case to
the RTC for the reception of evidence from qualified psychologists or
psychiatrists whom the parties may present to establish her state of mind at
the time of the killing.
First Issue: No Need for a Reexamination of Cause of Death
Accused-appellant seeks the exhumation of the victim's body to be able to
determine his exact cause of death, assailing the court a quo's conclusion
that he was "smashed or beaten at the back of his head" rather than shot,
as claimed by appellant.
Considering that the appellant has admitted the fact of killing her husband
and the acts of hitting his nape with a metal pipe and of shooting him at the
back of his head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the victim's
death. There is no need to exhume the body at this time and conduct an
autopsy thereon for the purpose.
Moreover, the matter of proving the cause of death should have been made
before the trial court. Time and again, we have said that this Court is not a
trier of facts. Neither will it authorize the firsthand reception of evidence,
where the opportunity to offer the same was available to the party during
the trial stage. Consistent with this principle alone, the prayer sought by
appellant for the exhumation of the victim's body cannot be granted.
Second Issue: The Need to Determine Appellant's State of Mind at the Time of the Killing
In seeking to be "examined and evaluated by psychologists and psychiatrists
to bring into evidence the abuse inflicted upon her; [and] to determine
whether such abuse will support the 'battered woman syndrome'," the
appellant brings to the fore a novel defense theory. Through Counsel
Katrina Legarda, she asks the Court to "re-evaluate the traditional elements"
used in determining self-defense and to consider the "battered woman
syndrome" as a viable plea within the concept of self-defense.
Allegedly, there are four characteristics of the syndrome: (1) the woman
believes that the violence was her fault; (2) she has an inability to place the
responsibility for the violence elsewhere; (3) she fears for her life and/or her
children's lives; and (4) she has an irrational belief that the abuser is
omnipresent and omniscient.[7] Living in constant danger of harm or death,
she knows that future beatings are almost certain to occur and will escalate
over time. Her intimate knowledge of the violent nature of her batterer
makes her alert to when a particular attack is forthcoming, and when it will
seriously threaten her survival. Trapped in a cycle of violence and constant
fear, it is not unlikely that she would succumb to her helplessness and fail to
perceive possible solutions to the problem other than to injure or kill her
batterer. She is seized by fear of an existing or impending lethal aggression
and thus would have no opportunity beforehand to deliberate on her acts
and to choose a less fatal means of eliminating her sufferings.
Appellant further alleges that the syndrome is already a recognized form of
self-defense in the United States and in Europe. In the US particularly, it is
classified as a post-traumatic stress disorder, rather than a form of mental
illness.[8] It has been held admissible in order to assess a defendant's
perception of the danger posed by the abuser.[9]
In view of the foregoing, Appellant Genosa pleads that she be allowed to
present evidence to prove that her relationship with her spouse-victim had
afflicted her with the syndrome. Allegedly, an expert can explain how her
experiences as a battered woman had affected her perception of danger
and her honest belief in its imminence, and why she had resorted to force
against her batterer.
The records of the case already bear some evidence on domestic violence
between appellant and her deceased husband. A defense witness, Dr. Dino
89
Caing, testified that she had consulted him at least six (6) times due to
injuries related to domestic violence and twenty-three (23) times for severe
hypertension due to emotional stress.[10] Even the victim's brother and
mother attested to the spouses' quarrels every now and then.The court a
quo, however, simplistically ruled that since violence had not immediately
preceded the killing, self-defense could not be appreciated.
Indeed, there is legal and jurisprudential lacuna with respect to the so-called
"battered woman syndrome" as a possible modifying circumstance that
could affect the criminal liability or penalty of the accused. The discourse of
appellant on the subject in her Omnibus Motion has convinced the Court
that the syndrome deserves serious consideration, especially in the light of
its possible effect on her very life. It could be that very thin line between
death and life or even acquittal. The Court cannot, for mere technical or
procedural objections, deny appellant the opportunity to offer this defense,
for any criminal conviction must be based on proof of guilt beyond
reasonable doubt.Accused persons facing the possibility of the death
penalty must be given fair opportunities to proffer all defenses possible that
could save them from capital punishment.
In People v. Parazo,[11] after final conviction of appellant therein, this Court
granted his Urgent Omnibus Motion and allowed him to undergo mental,
neurologic and otolaryngologic examination and evaluation to determine
whether he was a deaf-mute.Based on findings that he really was deaf and
mute, yet unaided during the trial by an expert witness who could
professionally understand and interpret his actions and mutterings, the
Court granted him re-arraignment and retrial. It justified its action on the
principle that "only upon proof of guilt beyond reasonable doubt may [the
accused] be consigned to the lethal injection chamber."
More recently in People v. Estrada,[12] we likewise nullified the trial
proceedings and remanded the case "to the court a quo for a conduct of a
proper mental examination on accused-appellant, a determination of his
competency to stand trial, and for further proceedings." In that case, the
defense counsel had moved to suspend the arraignment of the accused,
who could not properly and intelligently enter a plea because of his mental
defect, and to confine him instead in a psychiatric ward. But the trial court
denied the Motion, after simply propounding questions to the accused and
determining for itself that he could understand and answer them
"intelligently." After trial, he was convicted of murder aggravated by cruelty
and thus sentenced to death.
In nullifying the trial proceedings, this Court noted:[13]
"The trial court took it solely upon itself to determine the sanity of accused-
appellant. The trial judge is not a psychiatrist or psychologist or some other
expert equipped with the specialized knowledge of determining the state of
a person's mental health. To determine the accused-appellant's competency
to stand trial, the court, in the instant case, should have at least ordered the
examination of accused-appellant, especially in the light of the latter's
history of mental illness."
It was held that in denying appellant an examination by a competent
medical expert, the trial court practically denied him a fair trial prior to
conviction, in violation of his constitutional rights.
Moreover, proof of insanity could have exempted appellant from criminal
liability. If the accused had not performed the act voluntarily, then he could
not have been criminally liable. The Court, through Mr. Justice Reynato S.
Puno, emphasized:
"The basic principle in our criminal law is that a person is criminally liable for
a felony committed by him. Under the classical theory on which our penal
code is mainly based, the basis of criminal liability is human free will. Man is
essentially a moral creature with an absolutely free will to choose between
good and evil. When he commits a felonious or criminal act (delito doloso),
the act is presumed to have been done voluntarily, i.e., with freedom,
intelligence and intent. Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will appears unimpaired."[14]
In the instant case, it is equally important to determine whether Appellant
Genosa had acted freely, intelligently and voluntarily when she killed her
spouse. The Court, however, cannot properly evaluate her battered-woman-
syndrome defense, absent expert testimony on her mental and emotional
state at the time of the killing and the possible psychological cause and
effect of her fatal act. Unlike in Parazo, we cannot simply refer her for
proper psychological or psychiatric examination and thereafter admit the
findings and evaluation as part of the records of the cases for purposes of
automatic review. The prosecution has likewise the right to a fair trial, which
includes the opportunity to cross-examine the defense witnesses and to
refute the expert opinion given. Thus, consistent with the principle of due
process, a partial reopening of the case is apropos, so as to allow the
defense the opportunity to present expert evidence consistent with our
foregoing disquisition, as well as the prosecution the opportunity to cross
examine and refute the same.
WHEREFORE, the Urgent Omnibus Motion of Appellant Marivic Genosa
is PARTLY GRANTED. The case is hereby REMANDED to the trial court for the
90
reception of expert psychological and/or psychiatric opinion on the
"battered woman syndrome" plea, within ninety (90) days from notice, and,
thereafter to forthwith report to this Court the proceedings taken, together
with the copies of the TSN and relevant documentary evidence, if any,
submitted.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 180016 April 29, 2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the
Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz
(petitioner), seeking to reverse and set aside the Decision1 dated March 22,
2007 and Resolution2 dated September 5, 2007 of the Court of Appeals (CA),
which affirmed with modification the Decision3 dated July 30, 2004 of the
Regional Trial Court (RTC), Branch 46, San Fernando City, finding the
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article
315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale
Casino in Olongapo City sometime in 1990. Private complainant was then
engaged in the business of lending money to casino players and, upon
hearing that the former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered to sell the
said pieces of jewelry on commission basis. Private complainant agreed, and
as a consequence, he turned over to petitioner the following items: an 18k
diamond ring for men; a woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value of ₱98,000.00, as
evidenced by a receipt of even date. They both agreed that petitioner shall
remit the proceeds of the sale, and/or, if unsold, to return the same items,
within a period of 60 days. The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of jewelry. When private
complainant was able to meet petitioner, the latter promised the former that
he will pay the value of the said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa,
which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, after having received from one Danilo Tangcoy, one (1)
men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's
bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth
₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos
(₱98,000.00), Philippine currency, under expressed obligation on the part of
said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items,
with intent to defraud, and with unfaithfulness and abuse of confidence, and
far from complying with his aforestated obligation, did then and there wilfully,
unlawfully and feloniously misappropriate, misapply and convert to his own
personal use and benefit the aforesaid jewelries (sic) or the proceeds of the
sale thereof, and despite repeated demands, the accused failed and refused
to return the said items or to remit the amount of Ninety- Eight Thousand
Pesos (₱98,000.00), Philippine currency, to the damage and prejudice of
said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a
plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone
testimony of Danilo Tangcoy. On the other hand, the defense presented the
lone testimony of petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending loans to
Base employees. For every collection made, they earn a commission.
Petitioner denied having transacted any business with private complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989 for
which he was made to sign a blank receipt. He claimed that the same receipt
91
was then dated May 2, 1991 and used as evidence against him for the
supposed agreement to sell the subject pieces of jewelry, which he did not
even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the
crime charged in the Information. The dispositive portion of the decision
states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable
doubt of the felony of Estafa under Article 315, paragraph one (1),
subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of
deprivation of liberty consisting of an imprisonment under the Indeterminate
Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS
AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS
MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of
₱98,000.00 as actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of
petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated
July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is hereby
AFFIRMED with MODIFICATION on the imposable prison term, such that
accused-appellant shall suffer the indeterminate penalty of 4 years and 2
months of prision correccional, as minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional ₱10,000.00, or a total of 7 years.
The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this
Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE
ADMISSION AND APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR
ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID
NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH
THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED,
IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED
IN THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY
DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT
[PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF
SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS
PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2)
VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH
HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST
THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG)
stated the following counter-arguments:
92
The exhibits were properly admitted inasmuch as petitioner failed to object to
their admissibility.
The information was not defective inasmuch as it sufficiently established the
designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime
charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry
even more weight when said court affirms the findings of the trial court,
absent any showing that the findings are totally devoid of support in the
records, or that they are so glaringly erroneous as to constitute grave abuse
of discretion.4 Petitioner is of the opinion that the CA erred in affirming the
factual findings of the trial court. He now comes to this Court raising both
procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court,
admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and
its submarkings, although the same was merely a photocopy, thus, violating
the best evidence rule. However, the records show that petitioner never
objected to the admissibility of the said evidence at the time it was identified,
marked and testified upon in court by private complainant. The CA also
correctly pointed out that petitioner also failed to raise an objection in his
Comment to the prosecution's formal offer of evidence and even admitted
having signed the said receipt. The established doctrine is that when a party
failed to interpose a timely objection to evidence at the time they were
offered in evidence, such objection shall be considered as waived. 5
Another procedural issue raised is, as claimed by petitioner, the formally
defective Information filed against him. He contends that the Information
does not contain the period when the pieces of jewelry were supposed to be
returned and that the date when the crime occurred was different from the
one testified to by private complainant. This argument is untenable. The CA
did not err in finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance in the
Information cannot be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315, paragraph 1,
subparagraph (b) of the RPC is the appropriation or conversion of money or
property received to the prejudice of the owner6 and that the time of
occurrence is not a material ingredient of the crime, hence, the exclusion of
the period and the wrong date of the occurrence of the crime, as reflected in
the Information, do not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or omissions constitutive
thereof. Then Section 6, Rule 110 of the Rules of Court provides that a
complaint or information is sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party;
the approximate time of the commission of the offense, and the place
wherein the offense was committed. In the case at bar, a reading of the
subject Information shows compliance with the foregoing rule. That the time
of the commission of the offense was stated as " on or about the fifth (5th)
day of July, 1991" is not likewise fatal to the prosecution's cause considering
that Section 11 of the same Rule requires a statement of the precise time
only when the same is a material ingredient of the offense. The gravamen of
the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal
Code (RPC) is the appropriation or conversion of money or property received
to the prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein charged,
the failure of the prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also near the due
date within which accused-appellant should have delivered the proceeds or
returned the said [pieces of jewelry] as testified upon by Tangkoy, hence,
there was sufficient compliance with the rules. Accused-appellant, therefore,
cannot now be allowed to claim that he was not properly apprised of the
charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of Estafa
under Article 315, paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). – Any person who shall defraud another by any
of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another, money,
goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying having received
such money, goods, or other property; x x x
The elements of estafa with abuse of confidence are as follows: (a) that
money, goods or other personal property is received by the offender in trust,
93
or on commission, or for administration, or under any other obligation a I talked to him, sir.
involving the duty to make delivery of, or to return the same; (b) that there be
misappropriation or conversion of such money or property by the offender or q How many times?
denial on his part of such receipt; (c) that such misappropriation or
conversion or denial is to the prejudice of another; and (d) that there is a
a Two times, sir.
demand made by the offended party on the offender.8
q What did you talk (sic) to him?
Petitioner argues that the last element, which is, that there is a demand by
the offended party on the offender, was not proved. This Court disagrees. In
his testimony, private complainant narrated how he was able to locate a About the items I gave to (sic) him, sir.
petitioner after almost two (2) months from the time he gave the pieces of
jewelry and asked petitioner about the same items with the latter promising to q Referring to Exhibit A-2?
pay them. Thus:
a Yes, sir, and according to him he will take his obligation and I asked him
PROS. MARTINEZ where the items are and he promised me that he will pay these amount, sir.

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction q Up to this time that you were here, were you able to collect from him
could have been finished on 5 July 1991, the question is what happens (sic) partially or full?
when the deadline came?
a No, sir.9
a I went looking for him, sir.
No specific type of proof is required to show that there was
q For whom? demand.10 Demand need not even be formal; it may be verbal.11 The specific
word "demand" need not even be used to show that it has indeed been made
a Lito Corpuz, sir. upon the person charged, since even a mere query as to the whereabouts of
the money [in this case, property], would be tantamount to a demand.12 As
expounded in Asejo v. People:13
q Were you able to look (sic) for him?
With regard to the necessity of demand, we agree with the CA that demand
a I looked for him for a week, sir.
under this kind of estafa need not be formal or written. The appellate court
observed that the law is silent with regard to the form of demand in estafa
q Did you know his residence? under Art. 315 1(b), thus:

a Yes, sir. When the law does not qualify, We should not qualify. Should a written
demand be necessary, the law would have stated so. Otherwise, the word
q Did you go there? "demand" should be interpreted in its general meaning as to include both
written and oral demand. Thus, the failure of the prosecution to present a
a Yes, sir. written demand as evidence is not fatal.

q Did you find him? In Tubb v. People, where the complainant merely verbally inquired about the
money entrusted to the accused, we held that the query was tantamount to a
demand, thus:
a No, sir.

q Were you able to talk to him since 5 July 1991?

94
x x x [T]he law does not require a demand as a condition precedent to the
existence of the crime of embezzlement. It so happens only that failure to
account, upon demand for funds or property held in trust, is circumstantial
evidence of misappropriation. The same way, however, be established by
other proof, such as that introduced in the case at bar.14
In view of the foregoing and based on the records, the prosecution was able
to prove the existence of all the elements of the crime. Private complainant
gave petitioner the pieces of jewelry in trust, or on commission basis, as
shown in the receipt dated May 2, 1991 with an obligation to sell or return the
same within sixty (60) days, if unsold. There was misappropriation when
petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no
sale took place, failed to return the same pieces of jewelry within or after the
agreed period despite demand from the private complainant, to the prejudice
of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by
petitioner, the same is unmeritorious. Settled is the rule that in assessing the
credibility of witnesses, this Court gives great respect to the evaluation of the
trial court for it had the unique opportunity to observe the demeanor of
witnesses and their deportment on the witness stand, an opportunity denied
the appellate courts, which merely rely on the records of the case.15 The
assessment by the trial court is even conclusive and binding if not tainted
with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA. 16 Truth is
established not by the number of witnesses, but by the quality of their
testimonies, for in determining the value and credibility of evidence, the
witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating on
this case, the question of the continued validity of imposing on persons
convicted of crimes involving property came up. The legislature apparently
pegged these penalties to the value of the money and property in 1930 when
it enacted the Revised Penal Code. Since the members of the division
reached no unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court en banc for
consideration and resolution. Thus, several amici curiae were invited at the
behest of the Court to give their academic opinions on the matter. Among
those that graciously complied were Dean Jose Manuel Diokno, Dean
Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President,
and the Speaker of the House of Representatives. The parties were later
heard on oral arguments before the Court en banc, with Atty. Mario L.
Bautista appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this
Court finds the following:
There seems to be a perceived injustice brought about by the range of
penalties that the courts continue to impose on crimes against property
committed today, based on the amount of damage measured by the value of
money eighty years ago in 1932. However, this Court cannot modify the said
range of penalties because that would constitute judicial legislation. What the
legislature's perceived failure in amending the penalties provided for in the
said crimes cannot be remedied through this Court's decisions, as that would
be encroaching upon the power of another branch of the government. This,
however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC)
had anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed
but which are not covered by the law, and in cases of excessive penalties. -
Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the Department of
Justice, the reasons which induce the court to believe that said act should be
made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused
by the offense.18
The first paragraph of the above provision clearly states that for acts bourne
out of a case which is not punishable by law and the court finds it proper to
repress, the remedy is to render the proper decision and thereafter, report to
the Chief Executive, through the Department of Justice, the reasons why the
same act should be the subject of penal legislation. The premise here is that
a deplorable act is present but is not the subject of any penal legislation,
thus, the court is tasked to inform the Chief Executive of the need to make
that act punishable by law through legislation. The second paragraph is
similar to the first except for the situation wherein the act is already
punishable by law but the corresponding penalty is deemed by the court as
excessive. The remedy therefore, as in the first paragraph is not to suspend
the execution of the sentence but to submit to the Chief Executive the
reasons why the court considers the said penalty to be non-commensurate
with the act committed. Again, the court is tasked to inform the Chief
95
Executive, this time, of the need for a legislation to provide the proper
penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B.
Guevara opined that in Article 5, the duty of the court is merely to report to
the Chief Executive, with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena
sige lege," that is, that there can exist no punishable act except those
previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not
deem it necessary to prohibit its perpetration with penal sanction, the Court
of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the execution of
a sentence on the ground that the strict enforcement of the provisions of this
Code would cause excessive or harsh penalty. All that the Court could do in
such eventuality is to report the matter to the Chief Executive with a
recommendation for an amendment or modification of the legal provisions
which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief
Justice Ramon C. Aquino and retired Associate Justice Carolina C. Griño-
Aquino, in their book, The Revised Penal Code,21 echoed the above-cited
commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian principle
that justice must be tempered with mercy. Generally, the courts have nothing
to do with the wisdom or justness of the penalties fixed by law. "Whether or
not the penalties prescribed by law upon conviction of violations of particular
statutes are too severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the duty of the courts to
enforce the will of the legislator in all cases unless it clearly appears that a
given penalty falls within the prohibited class of excessive fines or cruel and
unusual punishment." A petition for clemency should be addressed to the
Chief Executive.22
There is an opinion that the penalties provided for in crimes against property
be based on the current inflation rate or at the ratio of ₱1.00 is equal to
₱100.00 . However, it would be dangerous as this would result in
uncertainties, as opposed to the definite imposition of the penalties. It must
be remembered that the economy fluctuates and if the proposed imposition
of the penalties in crimes against property be adopted, the penalties will not
cease to change, thus, making the RPC, a self-amending law. Had the
framers of the RPC intended that to be so, it should have provided the same,
instead, it included the earlier cited Article 5 as a remedy. It is also improper
to presume why the present legislature has not made any moves to amend
the subject penalties in order to conform with the present times. For all we
know, the legislature intends to retain the same penalties in order to deter the
further commission of those punishable acts which have increased
tremendously through the years. In fact, in recent moves of the legislature, it
is apparent that it aims to broaden the coverage of those who violate penal
laws. In the crime of Plunder, from its original minimum amount of
₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00. In
the same way, the legislature lowered the threshold amount upon which the
Anti-Money Laundering Act may apply, from ₱1,000,000.00 to ₱500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present
penalties do not seem to be excessive compared to the proposed imposition
of their corresponding penalties. In Theft, the provisions state that:
Art. 309. Penalties. — Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods,
if the value of the thing stolen is more than 12,000 pesos but does
not exceed 22,000 pesos, but if the value of the thing stolen exceeds
the latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which may be imposed
shall not exceed twenty years. In such cases, 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.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but
does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos
but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50 pesos
but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but
does not exceed 50 pesos.
96
 6. Arresto mayor in its minimum and medium periods, if such value
does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of
the next preceding article and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50
pesos, when the value of the thing stolen is not over 5 pesos, and
the offender shall have acted under the impulse of hunger, poverty,
or the difficulty of earning a livelihood for the support of himself or his
family.
In a case wherein the value of the thing stolen is ₱6,000.00, the above-
provision states that the penalty is prision correccional in its minimum and
medium periods (6 months and 1 day to 4 years and 2 months). Applying the
proposal, if the value of the thing stolen is ₱6,000.00, the penalty is
imprisonment of arresto mayor in its medium period to prision correccional
minimum period (2 months and 1 day to 2 years and 4 months). It would
seem that under the present law, the penalty imposed is almost the same as
the penalty proposed. In fact, after the application of the Indeterminate
Sentence Law under the existing law, the minimum penalty is still lowered by
one degree; hence, the minimum penalty is arresto mayor in its medium
period to maximum period (2 months and 1 day to 6 months), making the
offender qualified for pardon or parole after serving the said minimum period
and may even apply for probation. Moreover, under the proposal, the
minimum penalty after applying the Indeterminate Sentence Law is arresto
menor in its maximum period to arresto mayor in its minimum period (21
days to 2 months) is not too far from the minimum period under the existing
law. Thus, it would seem that the present penalty imposed under the law is
not at all excessive. The same is also true in the crime of Estafa. 23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the
thing stolen in the crime of Theft and the damage caused in the crime of
Estafa, the gap between the minimum and the maximum amounts, which is
the basis of determining the proper penalty to be imposed, would be too wide
and the penalty imposable would no longer be commensurate to the act
committed and the value of the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be
modified but the penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to
₱2,200,000.00, punished by prision mayor minimum to prision mayor
medium (6 years and 1 day to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punished by prision correccional medium and to
prision correccional maximum (2 years, 4 months and 1 day to 6
years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by prision correccional minimum to prision correccional
medium (6 months and 1 day to 4 years and 2 months).
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00,
punishable by arresto mayor medium to prision correccional
minimum (2 months and 1 day to 2 years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by
arresto mayor (1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00, punishable by arresto mayor
minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also
be modified but the penalties are not changed, as follows:
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to
₱2,200,000.00, punishable by prision correccional maximum to
prision mayor minimum (4 years, 2 months and 1 day to 8 years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punishable by prision correccional minimum to
prision correccional medium (6 months and 1 day to 4 years and 2
months).26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by arresto mayor maximum to prision correccional
minimum (4 months and 1 day to 2 years and 4 months).
4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor
maximum (4 months and 1 day to 6 months).
97
An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed
amici curiae, is that the incremental penalty provided under Article 315 of the
RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which is
determined according to a valid classification. The test developed by
jurisprudence here and yonder is that of reasonableness, 27 which has four
requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
Now, your position is to declare that the incremental penalty should be struck
down as unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual
punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if the amount is
more than Twenty-Two Thousand (₱22,000.00) Pesos.

(3) It is not limited to existing conditions only; and DEAN DIOKNO:

(4) It applies equally to all members of the same class.28 Well, that would be for Congress to ... if this Court will declare the
incremental penalty rule unconstitutional, then that would ... the void should
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest be filled by Congress.
on substantial distinctions as ₱10,000.00 may have been substantial in the
past, but it is not so today, which violates the first requisite; the IPR was JUSTICE PERALTA:
devised so that those who commit estafa involving higher amounts would
receive heavier penalties; however, this is no longer achieved, because a
But in your presentation, you were fixing the amount at One Hundred
person who steals ₱142,000.00 would receive the same penalty as someone
Thousand (₱100,000.00) Pesos ...
who steals hundreds of millions, which violates the second requisite; and, the
IPR violates requisite no. 3, considering that the IPR is limited to existing
conditions at the time the law was promulgated, conditions that no longer DEAN DIOKNO:
exist today.
Well, my presen ... (interrupted)
Assuming that the Court submits to the argument of Dean Diokno and
declares the incremental penalty in Article 315 unconstitutional for violating JUSTICE PERALTA:
the equal protection clause, what then is the penalty that should be applied in
case the amount of the thing subject matter of the crime exceeds For every One Hundred Thousand (₱100,000.00) Pesos in excess of
₱22,000.00? It seems that the proposition poses more questions than Twenty-Two Thousand (₱22,000.00) Pesos you were suggesting an
answers, which leads us even more to conclude that the appropriate remedy additional penalty of one (1) year, did I get you right?
is to refer these matters to Congress for them to exercise their inherent
power to legislate laws. DEAN DIOKNO:

Even Dean Diokno was of the opinion that if the Court declares the IPR Yes, Your Honor, that is, if the court will take the route of statutory
unconstitutional, the remedy is to go to Congress. Thus: interpretation.

xxxx JUSTICE PERALTA:

JUSTICE PERALTA: Ah ...

98
DEAN DIOKNO: DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law... Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

But if we de ... (interrupted) ... and determine the value or the amount.

DEAN DIOKNO: DEAN DIOKNO:

....then.... Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the That will be equivalent to the incremental penalty of one (1) year in excess of
court cannot fix the amount ... Twenty-Two Thousand (₱22,000.00) Pesos.

DEAN DIOKNO: DEAN DIOKNO:

No, Your Honor. Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty- The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
Two Thousand (₱22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
DEAN DIOKNO:
No, Your Honor.
Thank you.
JUSTICE PERALTA:
x x x x29
The Court cannot do that.
Dean Diokno also contends that Article 315 of the Revised Penal Code
DEAN DIOKNO: constitutes cruel and unusual punishment. Citing Solem v. Helm,30 Dean
Diokno avers that the United States Federal Supreme Court has expanded
Could not be. the application of a similar Constitutional provision prohibiting cruel and
unusual punishment, to the duration of the penalty, and not just its form. The
court therein ruled that three things must be done to decide whether a
JUSTICE PERALTA:
sentence is proportional to a specific crime, viz.; (1) Compare the nature and
gravity of the offense, and the harshness of the penalty; (2) Compare the
The only remedy is to go to Congress... sentences imposed on other criminals in the same jurisdiction, i.e., whether
more serious crimes are subject to the same penalty or to less serious
99
penalties; and (3) Compare the sentences imposed for commission of the
same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case,
because in Solem what respondent therein deemed cruel was the penalty
imposed by the state court of South Dakota after it took into account the
latter’s recidivist statute and not the original penalty for uttering a "no
account" check. Normally, the maximum punishment for the crime would
have been five years imprisonment and a $5,000.00 fine. Nonetheless,
respondent was sentenced to life imprisonment without the possibility of
parole under South Dakota’s recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the
present controversy.
With respect to the crime of Qualified Theft, however, it is true that the
imposable penalty for the offense is high. Nevertheless, the rationale for the
imposition of a higher penalty against a domestic servant is the fact that in
the commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After accepting and
allowing the helper to be a member of the household, thus entrusting upon
such person the protection and safekeeping of the employer’s loved ones
and properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the commission
of such wrongful acts.
There are other crimes where the penalty of fine and/or imprisonment are
dependent on the subject matter of the crime and which, by adopting the
proposal, may create serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:
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, through abandonment or
negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of 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 hundred 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 above-provisions contemplate a situation wherein the Government loses
money due to the unlawful acts of the offender. Thus, following the proposal,
if the amount malversed is ₱200.00 (under the existing law), the amount now
becomes ₱20,000.00 and the penalty is prision correccional in its medium
and maximum periods (2 years 4 months and 1 day to 6 years). The penalty
may not be commensurate to the act of embezzlement of ₱20,000.00
compared to the acts committed by public officials punishable by a special
law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act,
specifically Section 3,31 wherein the injury caused to the government is not
generally defined by any monetary amount, the penalty (6 years and 1 month
to 15 years)32 under the Anti-Graft Law will now become higher. This should
not be the case, because in the crime of malversation, the public official
takes advantage of his public position to embezzle the fund or property of the
government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon
things (inhabited or uninhabited) where the value of the thing unlawfully
taken and the act of unlawful entry are the bases of the penalty imposable,
and also, in Malicious Mischief, where the penalty of imprisonment or fine is
dependent on the cost of the damage caused.
100
In Robbery with force upon things (inhabited or uninhabited), if we increase
the value of the thing unlawfully taken, as proposed in the ponencia, the sole
basis of the penalty will now be the value of the thing unlawfully taken and no
longer the element of force employed in entering the premises. It may
likewise cause an inequity between the crime of Qualified Trespass to
Dwelling under Article 280, and this kind of robbery because the former is
punishable by prision correccional in its medium and maximum periods (2
years, 4 months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the premises is
with violence or intimidation, which is the main justification of the penalty.
Whereas in the crime of Robbery with force upon things, it is punished with a
penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is
unarmed without the penalty of Fine despite the fact that it is not merely the
illegal entry that is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest
penalty that can be imposed is arresto mayor in its medium and maximum
periods (2 months and 1 day to 6 months) if the value of the damage caused
exceeds ₱1,000.00, but under the proposal, the value of the damage will now
become ₱100,000.00 (1:100), and still punishable by arresto mayor (1 month
and 1 day to 6 months). And, if the value of the damaged property does not
exceed ₱200.00, the penalty is arresto menor or a fine of not less than the
value of the damage caused and not more than ₱200.00, if the amount
involved does not exceed ₱200.00 or cannot be estimated. Under the
proposal, ₱200.00 will now become ₱20,000.00, which simply means that
the fine of ₱200.00 under the existing law will now become ₱20,000.00. The
amount of Fine under this situation will now become excessive and afflictive
in nature despite the fact that the offense is categorized as a light felony
penalized with a light penalty under Article 26 of the RPC.33 Unless we also
amend Article 26 of the RPC, there will be grave implications on the penalty
of Fine, but changing the same through Court decision, either expressly or
impliedly, may not be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that may
also be affected by the proposal, such as those that impose imprisonment
and/or Fine as a penalty based on the value of the damage caused, to wit:
Article 311 (Theft of the property of the National Library and National
Museum), Article 312 (Occupation of real property or usurpation of real rights
in property), Article 313 (Altering boundaries or landmarks), Article 316
(Other forms of swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief) and Article 331
(Destroying or damaging statues, public monuments or paintings). Other
crimes that impose Fine as a penalty will also be affected, such as: Article
213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218
(Failure of accountable officer to render accounts), Article 219 (Failure of a
responsible public officer to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also
affect crimes which are punishable by special penal laws, such as Illegal
Logging or Violation of Section 68 of Presidential Decree No. 705, as
amended.34The law treats cutting, gathering, collecting and possessing
timber or other forest products without license as an offense as grave as and
equivalent to the felony of qualified theft.35 Under the law, the offender shall
be punished with the penalties imposed under Articles 309 and 31036 of the
Revised Penal Code, which means that the penalty imposable for the offense
is, again, based on the value of the timber or forest products involved in the
offense. Now, if we accept the said proposal in the crime of Theft, will this
particular crime of Illegal Logging be amended also in so far as the penalty is
concerned because the penalty is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the soundness of this particular
law is not in question.
With the numerous crimes defined and penalized under the Revised Penal
Code and Special Laws, and other related provisions of these laws affected
by the proposal, a thorough study is needed to determine its effectivity and
necessity. There may be some provisions of the law that should be
amended; nevertheless, this Court is in no position to conclude as to the
intentions of the framers of the Revised Penal Code by merely making a
study of the applicability of the penalties imposable in the present times.
Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal
luminaries and who, after due proceedings, can decide whether or not to
amend or to revise the questioned law or other laws, or even create a new
legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend the
Revised Penal Code. During the oral arguments, counsel for the Senate
informed the Court that at present, fifty-six (56) bills are now pending in the
Senate seeking to amend the Revised Penal Code,37 each one proposing
much needed change and updates to archaic laws that were promulgated
decades ago when the political, socio-economic, and cultural settings were
far different from today’s conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a
way that it shall not usurp legislative powers by judicial legislation and that in
the course of such application or construction, it should not make or
supervise legislation, or under the guise of interpretation, modify, revise,
amend, distort, remodel, or rewrite the law, or give the law a construction
101
which is repugnant to its terms.38 The Court should apply the law in a manner
that would give effect to their letter and spirit, especially when the law is clear
as to its intent and purpose. Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of the
doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or
a Fine; hence, it can be increased by the Court when appropriate. Article
2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-
delict shall be at least three thousand pesos, even though there may have
been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity
of the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at
the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to the
decedent's inheritance by the law of testate or intestate succession,
may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind
of monetary restitution or compensation to the victim for the damage or
infraction that was done to the latter by the accused, which in a sense only
covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where
a person dies, in addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a sum of money as
restitution. Clearly, this award of civil indemnity due to the death of the victim
could not be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in certain
crimes. Thus, the reasoning in increasing the value of civil indemnity
awarded in some offense cannot be the same reasoning that would sustain
the adoption of the suggested ratio. Also, it is apparent from Article 2206 that
the law only imposes a minimum amount for awards of civil indemnity, which
is ₱3,000.00. The law did not provide for a ceiling. Thus, although the
minimum amount for the award cannot be changed, increasing the amount
awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under Article
222039 of the Civil Code also does not fix the amount of damages that can be
awarded. It is discretionary upon the court, depending on the mental anguish
or the suffering of the private offended party. The amount of moral damages
can, in relation to civil indemnity, be adjusted so long as it does not exceed
the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense
committed as tantamount to cruel punishment. However, all penalties are
generally harsh, being punitive in nature. Whether or not they are excessive
or amount to cruel punishment is a matter that should be left to lawmakers. It
is the prerogative of the courts to apply the law, especially when they are
clear and not subject to any other interpretation than that which is plainly
written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s
opinions is that the incremental penalty provision should be declared
unconstitutional and that the courts should only impose the penalty
corresponding to the amount of ₱22,000.00, regardless if the actual amount
involved exceeds ₱22,000.00. As suggested, however, from now until the
law is properly amended by Congress, all crimes of Estafa will no longer be
punished by the appropriate penalty. A conundrum in the regular course of
criminal justice would occur when every accused convicted of the crime of
estafa will be meted penalties different from the proper penalty that should be
imposed. Such drastic twist in the application of the law has no legal basis
and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the
dispensation of criminal justice by the Ramos Administration by virtue of
Republic Act No. 765940 in December 1993. The said law has been
questioned before this Court. There is, arguably, no punishment more cruel
than that of death. Yet still, from the time the death penalty was re-imposed
until its lifting in June 2006 by Republic Act No. 9346,41 the Court did not
impede the imposition of the death penalty on the ground that it is a "cruel
punishment" within the purview of Section 19 (1),42 Article III of the
Constitution. Ultimately, it was through an act of Congress suspending the
imposition of the death penalty that led to its non-imposition and not via the
intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot
declare the provision of the law from which the proper penalty emanates
unconstitutional in the present action. Not only is it violative of due process,
102
considering that the State and the concerned parties were not given the Yeah, Just one question. You are suggesting that in order to determine the
opportunity to comment on the subject matter, it is settled that the value of Peso you have to take into consideration several factors.
constitutionality of a statute cannot be attacked collaterally because
constitutionality issues must be pleaded directly and not collaterally, 43 more PROFESSOR TADIAR:
so in the present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.
Yes.

Besides, it has long been held that the prohibition of cruel and unusual JUSTICE PERALTA:
punishments is generally aimed at the form or character of the punishment
rather than its severity in respect of duration or amount, and applies to
punishments which public sentiment has regarded as cruel or obsolete, for Per capita income.
instance, those inflicted at the whipping post, or in the pillory, burning at the
stake, breaking on the wheel, disemboweling, and the like. Fine and PROFESSOR TADIAR:
imprisonment would not thus be within the prohibition.44
Per capita income.
It takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution. The fact that the JUSTICE PERALTA:
punishment authorized by the statute is severe does not make it cruel and
unusual. Expressed in other terms, it has been held that to come under the Consumer price index.
ban, the punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of
PROFESSOR TADIAR:
the community."45

Yeah.
Cruel as it may be, as discussed above, it is for the Congress to amend the
law and adapt it to our modern time.
JUSTICE PERALTA:
The solution to the present controversy could not be solved by merely
adjusting the questioned monetary values to the present value of money Inflation ...
based only on the current inflation rate. There are other factors and variables
that need to be taken into consideration, researched, and deliberated upon PROFESSOR TADIAR:
before the said values could be accurately and properly adjusted. The effects
on the society, the injured party, the accused, its socio-economic impact, and Yes.
the likes must be painstakingly evaluated and weighed upon in order to arrive
at a wholistic change that all of us believe should be made to our existing JUSTICE PERALTA:
law. Dejectedly, the Court is ill-equipped, has no resources, and lacks
sufficient personnel to conduct public hearings and sponsor studies and
surveys to validly effect these changes in our Revised Penal Code. This ... and so on. Is the Supreme Court equipped to determine those factors?
function clearly and appropriately belongs to Congress. Even Professor
Tadiar concedes to this conclusion, to wit: PROFESSOR TADIAR:

xxxx There are many ways by which the value of the Philippine Peso can be
determined utilizing all of those economic terms.
JUSTICE PERALTA:
JUSTICE PERALTA:

103
Yeah, but ... but also the active duty to prevent injustice. Thus, in order to prevent injustice
in the present controversy, the Court should not impose an obsolete penalty
PROFESSOR TADIAR: pegged eighty three years ago, but consider the proposed ratio of 1:100 as
simply compensating for inflation. Furthermore, the Court has in the past
taken into consideration "changed conditions" or "significant changes in
And I don’t think it is within the power of the Supreme Court to pass upon
circumstances" in its decisions.
and peg the value to One Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA: Similarly, the Chief Justice is of the view that the Court is not delving into the
validity of the substance of a statute. The issue is no different from the
Court’s adjustment of indemnity in crimes against persons, which the Court
Yeah. had previously adjusted in light of current times, like in the case of People v.
Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that
PROFESSOR TADIAR: the lawmaking body intended right and justice to prevail.

... One (₱1.00.00) Peso in 1930. With due respect to the opinions and proposals advanced by the Chief
Justice and my Colleagues, all the proposals ultimately lead to prohibited
JUSTICE PERALTA: judicial legislation. Short of being repetitious and as extensively discussed
above, it is truly beyond the powers of the Court to legislate laws, such
That is legislative in nature. immense power belongs to Congress and the Court should refrain from
crossing this clear-cut divide. With regard to civil indemnity, as elucidated
before, this refers to civil liability which is awarded to the offended party as a
PROFESSOR TADIAR:
kind of monetary restitution. It is truly based on the value of money. The
same cannot be said on penalties because, as earlier stated, penalties are
That is my position that the Supreme Court ... not only based on the value of money, but on several other factors. Further,
since the law is silent as to the maximum amount that can be awarded and
JUSTICE PERALTA: only pegged the minimum sum, increasing the amount granted as civil
indemnity is not proscribed. Thus, it can be adjusted in light of current
Yeah, okay. conditions.

PROFESSOR TADIAR: Now, with regard to the penalty imposed in the present case, the CA
modified the ruling of the RTC. The RTC imposed the indeterminate penalty
... has no power to utilize the power of judicial review to in order to adjust, to of four (4) years and two (2) months of prision correccional in its medium
make the adjustment that is a power that belongs to the legislature. period, as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal in its minimum period, as maximum. However, the CA imposed the
indeterminate penalty of four (4) years and two (2) months of prision
JUSTICE PERALTA: correccional, as minimum, to eight (8) years of prision mayor, as maximum,
plus one (1) year for each additional ₱10,000.00, or a total of seven (7)
Thank you, Professor. years.

PROFESSOR TADIAR:
Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno
echoes the view that the role of the Court is not merely to dispense justice,
In computing the penalty for this type of estafa, this Court's ruling in Cosme,
Jr. v. People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal Code
provides:
104
ART. 315 Swindling (estafa). - Any person who shall defraud another by any
of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 but
does not exceed 22,000 pesos, and if such amount exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 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.
The penalty prescribed by Article 315 is composed of only two, not three,
periods, in which case, Article 65 of the same Code requires the division of
the time included in the penalty into three equal portions of time included in
the penalty prescribed, forming one period of each of the three portions.
Applying the latter provisions, the maximum, medium and minimum periods
of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days 49
To compute the maximum period of the prescribed penalty, prisión
correccional maximum to prisión mayor minimum should be divided into
three equal portions of time each of which portion shall be deemed to form
one period in accordance with Article 6550 of the RPC.51 In the present case,
the amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the
maximum penalty imposable should be within the maximum period of 6
years, 8 months and 21 days to 8 years of prision mayor. Article 315 also
states that a period of one year shall be added to the penalty for every
additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case
shall the total penalty which may be imposed exceed 20 years.
Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the
₱22,000.00 ceiling set by law, then, adding one year for each additional
₱10,000.00, the maximum period of 6 years, 8 months and 21 days to 8
years of prision mayor minimum would be increased by 7 years. Taking the
maximum of the prescribed penalty, which is 8 years, plus an additional 7
years, the maximum of the indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by
law for the estafa charge against petitioner is prision correccional maximum
to prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere
from 6 months and 1 day to 4 years and 2 months.
One final note, the Court should give Congress a chance to perform its
primordial duty of lawmaking. The Court should not pre-empt Congress and
usurp its inherent powers of making and enacting laws. While it may be the
most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007
of petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision
dated March 22, 2007 and Resolution dated September 5, 2007 of the Court
of Appeals, which affirmed with modification the Decision dated July 30, 2004
of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner
guilty beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby
AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS,
TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum,
to FIFTEEN (15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision
be furnished the President of the Republic of the Philippines, through the
Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and
the Speaker of the House of Representatives.
SO ORDERED.
105
THIRD DIVISION Contrary to and in violation of Sec. 22(a) and (d) in relation to Sec. 28 of
Republic Act No. 8282, as amended (emphasis and underscoring supplied)
ROMARICO J. MENDOZA, G.R. No. 183891
Petitioner,
Present: The monthly premium contributions of SATII employees to SSS which
petitioner admittedly failed to remit covered the period August 1998 to July
CARPIO MORALES, J., 1999[3] amounting to P421,151.09 inclusive of penalties.[4]
- versus - Chairperson,
BRION, After petitioner was advised by the SSS to pay the above-said amount, he
BERSAMIN, proposed to settle it over a period of 18 months[5] which proposal the SSS
ABAD,* and approved by Memorandum of September 12, 2000.[6]
VILLARAMA, JR., JJ. Despite the grant of petitioners request for several extensions of time to
PEOPLE OF THE PHILIPPINES, settle the delinquency in installments,[7] petitioner failed, hence, his
Respondent. Promulgated: indictment.
August 3, 2010
Petitioner sought to exculpate himself by explaining that during the
x--------------------------------------------------x questioned period, SATII shut down due to the general decline in the
economy.[8]
DECISION
CARPIO MORALES, J.: Finding for the prosecution, the trial court, as reflected above, convicted
For failure to remit the Social Security System (SSS) premium contributions petitioner, disposing as follows:
of employees of the Summa Alta Tierra Industries, Inc. (SATII) of which he
was president, Romarico J. Mendoza (petitioner) was convicted of violation WHEREFORE, premises considered, the Court finds Romarico J. Mendoza,
of Section 22(a) and (d) vis--vis Section 28 of R.A. No. 8282 or the Social guilty as charged beyond reasonable doubt. Accordingly, he is hereby
Security Act of 1997 by the Regional Trial Court of Iligan City, Branch 4. His meted the penalty of 6 years and 1 day to 8 years.
conviction was affirmed by the Court of Appeals.[1]
The accused is further ordered to pay the Social Security System the unpaid
[2]
The Information against petitioner reads: premium contributions of his employees including the penalties in the sum
of P421, 151.09.
xxxx SO ORDERED. [9] (emphasis supplied)

That sometime during the month of August 1998 to July 1999, in the City of
Iligan, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, being then the proprietor of Summa Alta Tierra Industries,
Inc., duly registered employer with the Social Security System (SSS), did then
and there willfully, unlawfully and feloniously fail and/or refuse to remit the
SSS premium contributions in favor of its employees amounting to P421,
151.09 to the prejudice of his employees.
And as also reflected above, the Court of Appeals affirmed the trial courts
decision, by Decision of July March 5, 2007,[10] it noting that the Social
Security Act is a special law, hence, lack of criminal intent or good faith is
not a defense in the commission of the proscribed act.
The appellate court brushed aside petitioners claim that he is merely a
conduit of SATII and, therefore, should not be held personally liable for its

106
liabilities. It held that petitioner, as President, Chairman and Chief Executive
Officer of SATII, is the managing head who is liable for the act or omission
penalized under Section 28(f) of the Social Security Act.
Petitioner contended in his motion for reconsideration that Section 28(f) of
the Act which reads:
(f) If the act or omission penalized by this Act be committed by an
association, partnership, corporation or any other institution, its managing
head, directors or partners shall be liable for the penalties provided in this
Act for the offense.
should be interpreted as follows:
If an association, the one liable is the managing head; if a partnership, the
ones liable are the partners; and if a corporation, the ones liable are the
directors.(underscoring supplied)
The appellate court denied petitioners motion, hence, the present petition
for review on certiorari.
Petitioner maintains, inter alia, that the managing head or president or
general manager of a corporation is not among those specifically mentioned
as liable in the above-quoted Section 28(f). And he calls attention to an
alleged congenital infirmity in the Information[11] in that he was charged as
proprietor and not as director of SATII.
Further, petitioner claims that the lower courts erred in penalizing him with
six years and one day to eight years of imprisonment considering the
mitigating and alternative circumstances present, namely: his being merely
vicariously liable; his good faith in failing to remit the contributions; his
payment of the premium contributions of SATII out of his personal
funds; and his being economically useful, given his academic credentials, he
having graduated from a prime university in Manila and being a reputable
businessman.
The petition lacks merit.
Remittance of contribution to the SSS under Section 22(a) of the Social
Security Act is mandatory. United Christian Missionary Society v. Social
Security Commission[12] explicitly explains:
No discretion or alternative is granted respondent Commission in the
enforcement of the laws mandate that the employer who fails to comply
with his legal obligation to remit the premiums to the System within the
prescribed period shall pay a penalty of three 3% per month. The
prescribed penalty is evidently of a punitive character, provided by the
legislature to assure that employers do not take lightly the States exercise
of the police power in the implementation of the Republics declared policy
to develop, establish gradually and perfect a social security system which
shall be suitable to the needs of the people throughout the Philippines and
(to) provide protection to employers against the hazards of disability,
sickness, old age and death.[Section 2, Social Security Act; Roman Catholic
Archbishop v. Social Security Commission, 1 SCRA 10, January 20, 1961] In
this concept, good faith or bad faith is rendered irrelevant, since the law
makes no distinction between an employer who professes good reasons for
delaying the remittance of premiums and another who deliberately
disregards the legal duty imposed upon him to make such remittance. From
the moment the remittance of premiums due is delayed, the penalty
immediately attaches to the delayed premium payments by force of
law. (emphasis and underscoring supplied)
Failure to comply with the law being malum prohibitum, intent to commit it
or good faith is immaterial.[13]
The provision of the law being clear and unambiguous, petitioners
interpretation that a proprietor, as he was designated in the Information, is
not among those specifically mentioned under Sec. 28(f) as liable, does not
lie. For the word connotes management, control and power over a business
entity.[14] There is thus, as Garcia v. Social Security Commission Legal and
Collection enjoins,[15]
. . . no need to resort to statutory construction [for] Section 28(f) of the
Social Security Law imposes penalty on:
(1) the managing head;
107

(2) directors; or
(3) partners, for offenses committed by a juridical person. (emphasis
supplied)
The term managing head in Section 28(f) is used, in its broadest
connotation, not to any specific organizational or managerial
nomenclature. To heed petitioners reasoning would allow unscrupulous
businessmen to conveniently escape liability by the creative adoption of
managerial titles.
While the Court affirms the appellate courts decision, there is a need
to modify the penalty imposed on petitioner. The appellate court affirmed
the trial courts imposition of penalty on the basis of Sec. 28(e) of the Social
Security Act which reads:
Sec. 28. Penal Clause. ─ (e) Whoever fails or refuses to comply with the
provisions of this Act or with the rules and regulations promulgated by the
Commission, shall be punished by a fine of not less than Five thousand
pesos (P5,0000.00) nor more than Twenty thousand pesos (P5,000.00) nor
more than Twenty thousand pesos (P20,000.00), or imprisonment for not
less than six (6) years and one (1) day nor more than twelve (12) years or
both, at the discretion of the court. x x x
The proper penalty for this specific offense committed by petitioner is,
however, provided in Section 28 (h) of the same Act which reads:
Sec. 28. Penal Clause (h) Any employer who after deducting the monthly
contributions or loan amortizations from his employees compensation, fails
to remit the said deductions to the SSS within thirty (30) days from the date
they became due shall be presumed to have misappropriated such
contributions or loan amortizations and shall suffer the penalties provided
in Article Three hundred fifteen [Art. 315] of the Revised Penal
Code. (emphasis and underscoring supplied)
Article 315 of the Revised Penal Code provides that the penalty in this case
should be
x x x prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 pesos but does
not exceed 22,000 pesos; and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the penalty which
may be imposed shall not exceed twenty years. In such cases, 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;
x x x x.
Since the above-quoted Sec. 28 (h) of the Social Security Act (a special law)
adopted the penalty from the Revised Penal Code, the Indeterminate
Sentence Law also finds application.[16]
Taking into account the misappropriated P421,151.09 and the Courts
discourse in People v. Gabres[17] on the proper imposition of the
indeterminate penalty in Article 315, the appropriate penalty in this case
should range from four (4) years and two (2) months of prision correccional,
as minimum, to twenty (20) years of reclusion temporal, as maximum.
WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-G.R.
CR No. 27630 are AFFIRMED with MODIFICATION. Petitioner is sentenced
to an indeterminate prison term of four (4) years and two (2) months
of prision correccional, as minimum, to twenty (20) years
of reclusion temporal, as maximum.
Costs against petitioner.
SO ORDERED.
108
ART 6
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a
decision of the Court of First Instance of Iloilo, finding him guilty of attempted
robbery and sentencing him to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one day of prision
mayor for being an habitual delinquent, with the accessory penalties of the
law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo,
caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time
the owner of the store, Tan Yu, was sleeping inside with another Chinaman.
The accused had only succeeded in breaking one board and in unfastening
another from the wall, when the policeman showed up, who instantly arrested
him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense;
that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a juridical fact from the
standpoint of the Penal Code. There is no doubt that in the case at bar it was
the intention of the accused to enter Tan Yu's store by means of violence,
passing through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of policeman
Tomambing, did not develop beyond the first steps of its execution. But it is
not sufficient, for the purpose of imposing penal sanction, that an act
objectively performed constitute a mere beginning of execution; it is
necessary to establish its unavoidable connection, like the logical and natural
relation of the cause and its effect, with the deed which, upon its
consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried
to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. Thus,
in case of robbery, in order that the simple act of entering by means of force
or violence another person's dwelling may be considered an attempt to
commit this offense, it must be shown that the offender clearly intended to
take possession, for the purpose of gain, of some personal property
belonging to another. In the instant case, there is nothing in the record from
which such purpose of the accused may reasonably be inferred. From the
fact established and stated in the decision, that the accused on the day in
question was making an opening by means of an iron bar on the wall of Tan
Yu's store, it may only be inferred as a logical conclusion that his evident
intention was to enter by means of force said store against the will of its
owner. That his final objective, once he succeeded in entering the store, was
to rob, to cause physical injury to the inmates, or to commit any other
offense, there is nothing in the record to justify a concrete
finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained, but the
same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their
very nature, by the facts to which they are related, by the
circumstances of the persons performing the same, and by the things
connected therewith, they must show without any doubt, that they
are aimed at the consummation of a crime. Acts susceptible of
double interpretation , that is, in favor as well as against the culprit,
and which show an innocent as well as a punishable act, must not
and can not furnish grounds by themselves for attempted nor
frustrated crimes. The relation existing between the facts submitted
109
 for appreciation and the offense which said facts are supposed to
produce must be direct; the intention must be ascertained from the
facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular injury. This
must have been the intention of the legislator in requiring that in
order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the
acts performed must be such that, without the intent to commit an
offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts
leading to the commission of the offense, are not punished except when they
are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of
March 21, 1892 — that in order to declare that such and such overt
acts constitute an attempted offense it is necessary that their
objective be known and established, or that said acts be of such
nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as
ground for the designation of the offense: . . . .
of instruction. The breaking of the wall should not be taken into consideration
as an aggravating circumstance inasmuch as this is the very fact which in
this case constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two aggravating
circumstances and one mitigating circumstance the penalty must be imposed
in its maximum period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is
hereby held guilty of attempted trespass to dwelling, committed by means of
force, with the aforesaid aggravating and mitigating circumstances and
sentenced to three months and one day of arresto mayor, with the accessory
penalties thereof and to pay the costs.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but attempted
trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and
decisions of the Supreme Court of Spain therein cited). Under article 280 of
the Revised Penal Code, this offense is committed when a private person
shall enter the dwelling of another against the latter's will. The accused may
be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said
store by breaking a board and unfastening another for the purpose of
entering said store ... and that the accused did not succeed in entering the
store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93;
U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina,
21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil.,
292.) Against the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, — inasmuch as the
record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack

110
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79123-25 January 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his guilt
beyond reasonable doubt of two crimes of Murder and one of Frustrated
Murder with which he has been charged, accused Emeliano Trinidad appeals
from the judgment of the Regional Trial Court, Branch 7, Bayugan, Agusan
del Sur.
From the testimony of the principal witness, Ricardo TAN, the prosecution
presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao City.
His helpers were TAN, a driver, and the other deceased victim Marcial
LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan City
to sell fish. In the morning of 20 January 1983 SORIANO drove the Fiera to
Buenavista, Agusan del Norte, together with LAROA and a helper of one
Samuel Comendador. TAN was left behind in Butuan City to dispose of the
fish left at the Langihan market. He followed SORIANO and LAROA,
however, to Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the
Integrated National Police, assigned at Nasipit Police Station, and residing at
Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is on
the way to Davao City. TRINIDAD was in uniform and had two firearms, a
carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA,
TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20 P.M.
bound for Davao City. TAN was driving the Fiera. Seated to his right was
SORIANO, LAROA and the accused TRINIDAD, in that order. When they
reached the stretch between El Rio and Afga, TRINIDAD advised them to
drive slowly because, according to him, the place was dangerous. All of a
sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead.
TAN did not actually see the shooting of LAROA but he witnessed the
shooting of SORIANO having been alerted by the sound of the first gunfire.
Both were hit on the head. TRINIDAD had used his carbine in killing the two
victims.
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City
and hid himself in the bushes. The Fiera was still running slowly then but
after about seven (7) to ten (10) meters it came to a halt after hitting the
muddy side of the road. TAN heard a shot emanating from the Fiera while he
was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a passenger jeep passed
by, TAN hailed it and rode on the front seat. After a short interval of time, he
noticed that TRINIDAD was seated at the back. Apparently noticing TAN as
well, TRINIDAD ordered him to get out and to approach him (TRINIDAD) but,
instead, TAN moved backward and ran around the jeep followed by
TRINIDAD. When the jeep started to drive away, TAN clung to its side.
TRINIDAD fired two shots, one of which hit TAN on his right thigh. As
another passenger jeep passed by, TAN jumped from the first jeep and ran
to the second. However, the passengers in the latter jeep told him to get out
not wanting to get involved in the affray. Pushed out, TAN crawled until a
member of the P.C. chanced upon him and helped him board a bus for
Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended that he
was in Cagayan de Oro City on the date of the incident, 20 January 1983. At
that time, he was assigned as a policeman at Nasipit Police Station, Agusan
del Norte. He reported to his post on 19 January 1983 but asked permission
from his Station Commander to be relieved from work the next day, 20
January, as it was his birthday. He left Baan, his Butuan City residence, at
about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de
Oro City. He arrived at Cagayan de Oro at around 8:00 P.M. and proceeded
to his sister's house at Camp Alagar to get his subsistence allowance, as his
sister was working thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in
addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at
lunch time on 21 January 1983 arriving at the latter place around 6:00 P.M.,
111
and went to his house directly to get his service carbine. He was on his way
to Nasipit to report for duty on 21 January 1983 when he was arrested at
around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial
Court** sentenced the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds
Emeliano Trinidad GUILTY beyond reasonable doubt of the
crimes of Murder and Frustrated Murder.
In the Frustrated Murder, there being no mitigating
circumstance, and taking into account the provisions of the
Indeterminate Sentence Law, accused Trinidad is meted out
a penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
2) to indemnify the complainant the amount of P 5,000.00;
and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is accordingly
sentenced:
1) to a penalty of Reclusion Perpetua in each case;
2) to indemnify the heirs of Marcial Laroa and Lolito Soriano
the amount of P30,000.00 each; and
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).
Before us now, TRINIDAD claims that the Trial Court erred in giving full faith
and credit to TAN's testimony who, TRINIDAD alleges, was an unreliable
witness. That is not so.
We find no variance in the statement made by TAN before the NAPOLCOM
Hearing Officer that when TRINIDAD boarded the Fiera in Buenavista, he
(TAN) was not in the vehicle, and that made in open Court when he said that
he was with TRINIDAD going to Butuan City on board the Fiera. For the facts
disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN was still
in Langihan distributing fish. The Fiera left for Buenavista, driven by
SORIANO between 6:00 to 7:00 A.M., while TAN followed only at 11:00,
A.M. in another vehicle. So that when TRINIDAD boarded the Fiera in
Buenavista, TAN was not yet in that vehicle although on the return trip from
Butuan City to Davao City, TAN was already on board. In fact, TAN was the
one driving. TAN's testimony clarifying this point reads:
Q Did you not say in your direct examination that you went to Buenavista,
Agusan del Norte?
A We were in Langihan and since our fishes were not consumed there, we
went to Buenavista.
Q Now, what time did you leave for Buenavista from Langihan?
A It was more or less at 6:00 to 7:00 o'clock.
Q You were riding the fish car which you said?
A I was not able to take the fish car in going to Buenavista because they left
me fishes to be dispatched yet.
Q In other words, you did not go to Buenavista on January 20, 1983?
A I was able to go to Buenavista after the fishes were consumed.
Q What time did you go to Buenavista?
A It was more or less from 11:00 o'clock noon.
Q What transportation did you take?
A I just took a ride with another fish car because they were also going to
dispatch fishes in Buenavista.
Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock
in the morning of January 20, 1983?
A Lolito Soriano and Marcia Laroa with his helper.
xxxxxx
Q Now, when this fish car returned to Butuan City who drove it?
A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?
A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).
Felimon Comendador, also a fish vendor, and a resident of Butuan City,
testified that he saw TRINIDAD riding in the Fiera on the front seat in the
company of TAN, SORIANO and LAROA, when the Fiera stopped by his
house at Butuan City (TSN, November 5, 1985, pp. 32-33).
The other inconsistencies TRINIDAD makes much of, such as, that TAN was
unsure before the NAPOLCOM Hearing Officer whether TRINIDAD was
wearing khaki or fatigue uniform but, in open Court, he testified positively that
TRINIDAD was in khaki uniform; and that while TAN declared that TRINIDAD
was wearing a cap, prosecution witness Felimon Comendador said that he
112
was not but was in complete fatigue uniform, are actually trivial details that Q What was the firearm used?
do not affect the positive identification of TRINIDAD that TAN has made nor A Carbine, sir.
detract from the latter's overall credibility. xxxxxx
Q Now, after you saw that the two fell dead, what did you do?
Nor is there basis for TRINIDAD to contend that the absence of gunpowder
burns on the deceased victims negates TAN's claim that they were shot
A I got out from the Ford Fiera while it was running.
"point-blank." Actually, this term refers merely to the "aim directed straight xxxxxx
toward a target" (Webster's Third New International Dictionary) and has no Q From the place where you were because you said you ran, what
reference to the distance between the gun and the target. And in point of transpired next?
fact, it matters not how far the assailant was at the time he shot the victims, A I hid myself at the side of the jeep, at the bushes.
the crucial factor being whether he did shoot the victim or not. Q While hiding yourself at the bushes, what transpired?
A I heard one gun burst.
TRINIDAD's defense of alibi is inherently weak and cannot prevail over the
Q From what direction was that gun bursts you heard?
straightforward and detailed descriptive narration of TAN, thus:
A From the Ford Fiera, sir.
Q Now, from Butuan City, where did you proceed? Q After that, what happened?
A We proceeded to Davao. A At around 20 to 30 minutes, I moved out from the place where I hid
Q Did you in fact reach Davao on that date? myself because I wanted to go back to Butuan, Then, I boarded the jeep and
A No, sir. sat at the front seat but I found out that Emeliano Trinidad was at the back
Q Could you tell the Court why you failed to reach Davao? seat.
A Because we were held-up. Q When you found out that Trinidad was at the back, what happened?
Q Who held-up you? A He ordered me to get out.
A Emeliano Trinidad, sir. Q Now, when you got down, what happened?
Q Are you referring to accused Emeliano Trinidad whom you pointed to the A When I got out from the jeep, Trinidad also got out.
court awhile ago? Q Tell the Court, what happened after you and Trinidad got out from the
A Yes, sir. jeep?
Q Will you tell the Court how did Emeliano Trinidad holdup you? A He called me because he wanted me to get near him.
A When we reach between El Rio and Afga, Trinidad advised us to run slowly Q What did you do?
because this place is dangerous. Then suddenly there were two gun bursts. A I moved backward.
Q Now, you heard two gun bursts. What happened? What did you see if 'Q Now, what did Trinidad do?
there was any? A He followed me.
A I have found out that Lolito Soriano and Marcial Laroa already fall. Q While Trinidad followed you, what happened?
Q Fall dead? A I ran away around the jeep.
A They were dead because they were hit at the head. Q Now, while you were running around the jeep, what happened?
Q You mean to inform the Court that these two died because of that gun A The driver drove the jeep.
shot bursts? Q Now, after that, what did you do?
A Yes, sir. A I ran after the jeep and then I was able to take the jeep at the side of it.
Q Did you actually see Trinidad shooting the two? Q How about Trinidad, where was he at that time?
A He also ran, sir.
A I did not see that it was really Trinidad who shot Laroa but since I was
already alerted by the first burst, I have seen that it was Trinidad who shot Q Now, when Trinidad ran after you what happened?
Soriano. A Trinidad was able to catchup with the jeep and fired his gun.

113
Q Were you hit? WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of
A At that time I did not know that I was hit because it was sudden. Murder (on two counts) and Attempted Murder, having been proven beyond
Q When for the first time did you notice that you were hit? reasonable doubt, his conviction is hereby AFFIRMED and he is hereby
sentenced as follows:
A At the second jeep.
Q You mean to inform the Court that the jeep you first rode is not the very 1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99
same jeep that you took for the second time? below) for Murder, he shall suffer the indeterminate penalty
A No, sir. of ten (10) years and one (1) day of prision mayor, as
Q Now, when you have notice that you were hit, what did you do? minimum, to eighteen (18) years, eight (8) months and one
A At the first jeep that I took I was hit, so I got out from it and stood-up at (1) day of reclusion temporal, as maximum; to indemnify the
the middle of the road so that I can catch up the other jeep.' (TSN, heirs of Marcial Laroa and Lolito Soriano, respectively, in the
amount of P30,000.00 each; and to pay the costs.
December 6, 1985, pp. 44-49)
2) In Criminal Case No. 79125 (No. 100 below) for
TAN's testimony remained unshaken even during cross- examination. No ill Frustrated Murder, he is hereby found guilty only of
motive has been attributed to him to prevaricate the truth. He was in the Attempted Murder and sentenced to an indeterminate
vehicle where the killing transpired was a witness to the actual happening, penalty of six (6) months and one (1) day of prision
and was a victim himself who managed narrowly to escape death despite the correccional, as minimum, to six (6) years and one (1) day of
weaponry with which TRINIDAD was equipped. prision mayor, as maximum; to indemnify Ricardo Tan in the
sum of P5,000,00; and to pay the costs.
The defense is correct, however, in contending that in the Frustrated Murder
case, TRINIDAD can only be convicted of Attempted Murder. TRINIDAD had SO ORDERED.
commenced the commission of the felony directly by overt acts but was
unable to perform all the acts of execution which would have produced it by
reason of causes other than his spontaneous desistance, such as, that the
jeep to which TAN was clinging was in motion, and there was a spare tire
which shielded the other parts of his body. Moreover, the wound on his thigh
was not fatal and the doctrinal rule is that where the wound inflicted on the
victim is not sufficient to cause his death, the crime is only Attempted Murder,
the accused not having performed all the acts of execution that would have
brought about death (People vs. Phones, L-32754-5, July 21, 1978, 84
SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497).

But while the circumstances do spell out the two crimes of Murder, the
penalty will have to be modified. For, with the abolition of capital punishment
in the 1987 Constitution, the penalty for Murder is now reclusion temporal in
its maximum period to reclusion perpetua (People vs. Lopez, et al. G.R. No.
71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673, October
30, 1987; People vs. Masangkay, G.R. No. 73461, October 27, 1987). With
no attending mitigating or aggravating circumstance, said penalty is
imposable in its medium period or from eighteen (18) years, eight (8) months
and one (1) day to twenty (20) years. The penalty next lower in degree for
purposes of the Indeterminate Sentence Law is prision mayor, maximum,
to reclusion temporal, medium, or from ten (10) years and one (1) day to
seventeen (17) years and four (4) months (Article 61, parag. 3, Revised
Penal Code).
114
 EN BANC
[G.R. Nos. 141154-56. January 15, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO
"Ando" COSTALES and FERNANDO RAMIREZ (at-
large), accused.
FERNANDO "Ando" COSTALES, accused-appellant.
DECISION
BELLOSILLO, J.:
Traditionally, religious fervor nourishes love, respect and concern for
one another among brethren; it was not so however in the case of one whose
adherence to his faith became the harbinger of his tragic end, sending his
wife hanging by the thread of death, and worse, the crimes were perpetrated
apparently by their brethren professing to be"denizens of the temple."
Accused Fernando "Ando" Costales and Fernando Ramirez, the latter
being still at large, stood charged with the murder of Miguel Marcelo and the
frustrated murder of Crispina Marcelo. As the perpetrators were found to be
in unlawful possession of firearms they were also charged with violation of
PD 1866, as amended by RA 8294.
Since accused Fernando Ramirez remained at large, only accused
Fernando "Ando" Costales was arraigned and tried.
For violation of Sec. 1, PD 1866, as amended (Crim. Case No. T-2054),
accused Fernando "Ando" Costales was found guilty and sentenced[1] to an
indeterminate penalty of six (6) months of arresto mayor as minimum to six
(6) years of prision correccional as maximum, and to pay a fine of P30,000.
For the murder of Miguel Marcelo (Crim. Case No. T-2057), accused
Fernando "Ando" Costales was found guilty and meted the ultimate penalty
of death.
For the frustrated murder of Crispina Marcelo (Crim. Case No. T-2056)
he was found guilty only of attempted murder and sentenced to an
indeterminate penalty of six (6) years of prision correccional as minimum to
twelve (12) years of prision mayor as maximum. Additionally, he was
ordered "to pay the heirs of the two (2) victimsP250,000.00 in damages to be
shared by and among them in a manner that suits them best."
Sitio Raniag, Barangay Capas, was a placid but
forlorn barrio in Pangasinan wherethe spouses Miguel and Crispina Marcelo
resided in a small one-room shanty with concrete flooring and cogon
roofing. Although their married daughters Donabel, Jessie and Erlinda
already had their own houses they would spend the night with them every
once in a while. And so it was on the night of 27 November 1997.
Jessie Molina recalled that at around 11:30 o'clock in the evening of 27
November 1997, she and her sisters Donabel and Erlinda together with their
parents Miguel and Crispina had taken their own corners of their small house
to prepare for the night.Miguel laid in a folding bed beside the door while the
others occupied a bamboo bed with the exception of Jessie who for want of
available space settled instead on the concrete floor. Jessie and Erlinda had
just watched tv when two (2) persons suddenly barged into their house
passing through the door kept ajar by sacks of palay and strangled her father
Miguel. Jessie readily recognized the two (2) intruders because the entire
room was illuminated by a nightlamp which the family kept burning overnight.
Jessie narrated that Fernando "Ando" Costales, one of the assailants,
poked a gun at the head of her father and shot him once in cold
blood. Thereafter the other assailant Fernando Ramirez sprayed on their
faces what she described as "something hot and pungent," and with his
firearm pumped a bullet on her mother's chest.
Erlinda Marcelo was also awakened when the two (2) accused suddenly
entered their house and strangled their father
after which Fernando Costales shot him pointblank in the
head. According to Erlinda, when tear gas was sprayed by Ramirez, she
ducked and almost simultaneously she heard a gunshot towards the direction
of her mother. When she opened her eyes, she saw her mother Crispina
clutching her breast, reeling from the blow and collapsing on the floor in a
heap. In her testimony Crispina herself confirmed that Ramirez shot her once
on the right chest which caused her to bleed and lose consciousness.
Both Jessie and Erlinda affirmed that they were familiar with the two (2)
accused because, like the rest of the family, they were members of the "Baro
a Cristiano" also known as Lamplighter, of which Fernando "Ando" Costales
and Fernando Ramirez were the high priests in their respective
areas. According to Jessie, her parents decided to quit the brotherhood
because Ramirez warned them not to sever their ties with the sect if they did
not want any harm to befall them. In fact, according to her, a month earlier
Ramirez even threatened her sister Erlinda with bodily harm.
Like her sister, Erlinda stated that their family distanced themselves
from the congregation when Ramirez threatened her father. According to her,
on 16 November 1997, Miguel tried to fetch her from the house of Ramirez
but Miguel relented only after Ramirez threatened her with a bolo. Her father
tried to get her when he learned that Ramirez was molesting her every time
115
his wife was away. She however did not report this matter immediately to the
authorities because she feared for her life.
Dr. Alex E. Trinidad, Rural Health Physician of Umingan,
Pangasinan, afterconducting an autopsy on the body of Miguel Marcelo
reported: (a) The gunshot wound penetrating the left lobe of the liver of
deceased Miguel Marcelo was fatal; (b) Considering the trajectory of the
gunshot wound, the assailant was probably pointing slightly downward; (c)
The cause of death of the deceased was internal hemorrhage arising from
the gunshot wound; and, (d) Considering the wound of the victim, he could
have survived for a few minutes after he was shot.
To show that he could not have been a party to the crimes charged,
accused Fernando Costales gave a detailed account of his activities by
retracing his steps from late afternoon of 27 November 1997 until dawn of
the following day. He narrated that at 5:00 o'clock in the afternoon of 27
November he was irrigating his land in Barangay Libeg, then proceeded to a
nearby chapel to pray. At past 7:00 o'clock in the evening, he went to see a
certain Isidro who was irrigating his own land with the use of his (Fernando's)
water pump. That being done he went back home.
A couple of hours later, in the company of his wife and children, he
returned to the mission house to attend another religious service. At
past 9:00 o'clock that same evening he dropped by Isidro's farmland to verify
if the latter had finished irrigating. He went back home at around 11:00
o'clock to sleep and was awakened by Isidro at about 11:45 o'clock only to
inform him that he (Isidro) was through. When Isidro left, Fernando went
back to sleep only to be roused again by Gregorio Baguio who also wanted
to borrow his water pump. With his sleep disrupted, he decided
around midnight to visit as he did the nearby mission house to pray. Shortly
after, he resumed his sleep but woke up again at 4:00 o'clock in the morning
to see if Baguio had already finished watering his farm.
Defense witnesses Isidro Costales and Gregorio Baguio corroborated
the claim of Fernando Costales that he could not have perpetrated the
crimes as he was with them all the time they were irrigating their
farms. Likewise, Elvie Costales, wife of accused Fernando Costales,
presented an "attendance notebook," purportedly prepared by her, showing
that her husband, who was the chapter's religious leader, was worshipping in
the Barangay Libeg chapel from 4:45 to 4:47 o'clock and from 5:30 to 5:37
o'clock at daybreak,[2] from 7:22 to 8:00 o'clock after sunset,[3] and from 12:10
to 12:15 o'clock midnight[4] of 27 November 1997, although he would
periodically leave the prayer meeting to check if Isidro had already finished
watering his farm so that Baguio could also use the pump.
But the trial court viewed the alibi of the defense with askance and
assigned full credit to the declarations of the prosecution witnesses.
In disbelieving the veracity of the "attendance notebook," the court a
quo opined that Exh. "2" could have been more impressive had it borne the
confirming signatures or thumbmarks of the "Baro a Cristiano" faithful,
including their leader Fernando Costales, or had Exhs. "2-B" and "2-C" been
corroborated on the witness stand by a less interested member, or had the
church secretary who allegedly kept record of attendance been some
member other that Mrs. Costales or the nearest of kin.[5]
The court below also virtually jettisoned the testimonies of Isidro
Costales and Gregorio Baguio when it said that "they had every reason to
come to the rescue of the accused Costales, their admittedly common
nephew." Further, it pointed out that the accused and his witnesses issued
contradictory and irreconcilable statements when, on one hand Isidro
testified that before midnight of 27 November 1997 he went to the house of
his nephew Fernando Costales to inform him that the irrigation of his farm
was already through; on the other hand, Baguio claimed that at around 11:00
o'clock that night he roused the accused who thereafter went to operate the
pump and stayed put beside it until Baguio's farm was completely irrigated at
4:00 o'clock the next morning.
The above statements, the court a quo observed, did not jibe with those
made by the accused that his uncle Isidro woke him up at around 11:45
o'clock in the evening and told him that the irrigation of his farm was finished,
after which he returned to bed and when he awakened at past 4:00 o'clock
the following morning, he met Baguio who told him that he too was through
irrigating.
In contrast, the trial court saw no dark motives behind the respective
testimonies of Crispina Marcelo and her two (2) daughters. The Costaleses
and the Marcelos used to be members of the same religious sect and
accused "Ando" Costales even stood as a sponsor at the wedding of Jessie
Marcelo, and again when Crispina's brother got married. In short, the
Marcelos could not have mistaken "Ando" Costales and Fernando Ramirez
for other felons.
In this automatic review, accused Fernando Costales takes exception to
the findings of the trial court and thus seeks reversal of his convictions on the
ground that it erred:(a) in according credence to the testimonies of the
prosecution witnesses although the same are perforated with material
inconsistencies and bias; (b) in not giving weight to the defense of alibi
despite the weakness of the prosecution evidence; (c) in convicting him of
violation of Sec. 1, PD 1866, as amended, since the same was absorbed in
the crime of murder; (d) in finding that the crime was attended by conspiracy
despite the fact that no aggravating circumstance was established beyond
reasonable doubt; and, (e) in not appreciating the mitigating circumstance of
voluntary surrender in his favor.
116
 The first and second assigned errors will be discussed jointly since they
are interrelated.
Accused-appellant argues that the seemingly flawless and unwavering
testimonies of the three (3) key prosecution witnesses on the assault of the
Marcelo household are obviously biased that they invite suspicion and
disbelief.
Concededly, the prosecution witnesses gave almost uniform
observations on how the malefactors carried out their detestable crimes, i.e.,
the identity of the assailants, that Miguel was strangled by both intruders and
almost simultaneously shot on the head, that one of them sprayed a
chemical on the other occupants of the house and after a split second fired at
Crispina. Such consistency and uniformity may be irregular at first blush, but
accused-appellant failed to take into account the following factors which
account for the "near flawless" statements of the prosecution witnesses: (a)
the one-room shanty was very small with no substantial obstruction to
impede the vision of the occupants; (b) the room was lighted by a kerosene
lamp sufficient enough for the occupants to recognize accused-appellant and
his cohort, especially so since the assailants were prominent and venerated
leaders of their church; and, (c) at the time of the incident the Marcelo
spouses and their children were lying very near each other because of the
very limited space of their shanty such that every perceived action could be
seen, felt, or at least sensed, by all of them.
Accused-appellant is seeing ghosts where there is none. Contrary to his
submission, it would be highly irregular indeed if the prosecution witnesses
failed to observe the events that transpired on that fateful night of 27
November 1997 and their statements did not dovetail, at least on material
points, despite very favorable conditions for a fairly accurate observation.
Neither should we ascribe importance, as the accused-appellant seems
to suggest, to an apparent "inconsistency" by witness Jessie Molina when
she mentioned that the unwanted intrusion occurred shortly after she turned
off the television set, contrary to her earlier claim that barangay Capas was
without electricity. Jessie Molina dispelled this obscurity when she clarified
that the television set was powered by Motolite battery which is in fact a
common practice in unenergized "barrios," as the trial court would put
it,[6] and Sitio Raniag, Barangay Capas did not still have electricity at that
time.
Clearly, the straightforward and consistent narration of facts, as the trial
court observed, by the three (3) prosecution witnesses, especially Crispina
Marcelo, a victim herself, immensely fortifies the conclusion that accused-
appellant is guilty as charged.Moreover, no impure motive on their part has
been established by the defense to sully their truthfulness and erode their
credibility.
Accused-appellant cannot insist on his alibi, especially so since he and
his co-accused were positively identified by the prosecution witnesses. More
so when it is undisputed that the proximity of their place to the scene of the
crimes did not preclude the possibility that they were in fact present at the
time of their commission.
On the third issue, accused-appellant decries the Decision of the court a
quo in qualifying the crimes of murder and attempted murder with illegal
possession of firearm and at the same time convicting him for violation of PD
1866, as amended.
We agree. Although the prosecution duly established that the crime of
illegal possession of firearm under PD 1866 was committed, RA 8294, which
took effect 7 July 1997, amended the decree and now considers the use of
unlicensed firearm as a special aggravating circumstance in murder and
homicide, and not as a separate offense.[7]
As it should be, possession and use of firearm without license should
aggravate the crimes of murder and frustrated murder as herein charged but,
fortunately for accused-appellant, Secs. 8 and 9 of the Revised Rules on
Criminal Procedure, which took effect 1 December 2000, now require the
qualifying as well as aggravating circumstances to be expressly and
specifically alleged in the complaint or information, otherwise the same will
not be considered by the court even if proved during the trial. Withal, in the
absence of any allegation in the Information in Crim. Case No. T-2057 that
accused-appellant committed murder with the use of unlicensed firearm, the
same cannot be appreciated in imposing the proper penalty.
Moving now to the modifying circumstances raised under the fourth
assigned error, accused-appellant points out that the trial court grievously
erred in appreciating unlicensed firearm, evident premeditation and nighttime
which were alleged in the Informations in Crim. Case No. T-2056 for
frustrated murder and Crim. Case No. T-2057 for murder.
While we yield to the trial court's finding of treachery, we take exception
to its view that evident premeditation and nighttime also aggravated the
offenses. Without doubt, treachery has been established by the prosecution
evidence which showed that accused-appellant Fernando Costales and his
confederate Fernando Ramirez swiftly and unexpectedly barged into the
Marcelo residence in the middle of the night, shot Miguel Marcelo to death as
well as his wife Crispina who almost lost her life, and sprayed a substance
which temporarily blinded the other occupants of the house. The suddenness
of the attack gave the victims no opportunity whatsoever to resist or parry the
assault thereby ensuring the accomplishment of their dastardly deed without
risk to themselves. Since the attack on the victims was synchronal, sudden
and unexpected, treachery must be properly appreciated.
117
 We cannot however give our assent to the view that nighttime and would have caused his death." In fact, as early as People v. Zaragosa,[12] we
evident premeditation accompanied the commission of the crimes. The enunciated the doctrine that where there is nothing in the evidence to show
aggravating circumstance of nighttime is absorbed by treachery,[8] while that the wound would be fatal if not medically attended to, the character of
evident premeditation cannot be appreciated in the absence of proof of the the wound is doubtful; hence, the doubt should be resolved in favor of the
planning and preparation to kill or when the plan was conceived.[9] accused and the crime committed by him may be declared as attempted, not
frustrated murder.
The convergence of the wills of the two (2) executioners amply justifies
the imputation that they acted in concert and in unity in their unlawful WHEREFORE, the assailed Decision finding accused-appellant
objective when in the stillness of the night they both crashed into the Marcelo Fernando "Ando" Costales guilty of murder and attempted murder is
residence, strangulated the victim Miguel, then one of them shot him in the AFFIRMED with the following MODIFICATION: In Crim. Case No. T-2057,
head while the other sprayed tear gas on the other members of the family the crime of murder not being considered to have been attended by any
obviously to disable them, and thereafter pumped a bullet at the horrified generic mitigating or aggravating circumstances, accused-appellant
Crispina. This series of actions betrays a concerted design and Fernando "Ando" Costales is sentenced to suffer only the penalty of reclusion
concurrence of sentiments to cause mayhem and murder. Accordingly, perpetua. In Crim. Case No. T-2056, the crime of attempted murder not
conspiracy was properly appreciated by the trial court. likewise considered to have been attended by any generic mitigating or
aggravating circumstances, accused-appellant Fernando "Ando" Costales is
Neither can we sympathize with accused-appellant's misplaced accordingly sentenced in addition to his penalty imposed in Crim. Case No.
sentiment that he had been denied the mitigating circumstance of voluntary T-2057 herein before mentioned, to suffer an indeterminate prison term of
surrender. As found by the trial court, his alleged surrender was made too two (2) years and four (4) months of prision correccional medium as
late, and in a place too distant from the crime site as well as his place of minimum, to eight (8) years and six (6) months of prision mayorminimum as
residence.[10] maximum;
We observe that the trial court awarded P250,000.00 to the heirs of the Accused-appellant Fernando "Ando" Costales is further ordered to pay
deceased on the justification that the same had been stipulated upon by the the heirs of the victim Miguel Marcelo P50,000.00 as death indemnity and
parties. This is patently wrong. Award of damages is dictated, not by the another P50,000.00 as moral damages.
agreement of the parties; worse, "in a manner that suits them best,"[11] but by
the mandate of law and jurisprudence. Accordingly in conformity with SO ORDERED.
established law and jurisprudence, the award of P50,000.00 as civil
indmenity and another P50,000.00 as moral damages should be awarded to
the heirs of the victim.
Pursuant to Art. 248 of The Revised Penal Code as amended by RA
7659, the penalty for murder is reclusion perpetua to death. There being no
modifying circumstances found in Crim. Case No. T-2057, and applying par.
2 of Art. 63 of the Code, the lesser penalty of reclusion perpetua shall be
imposed.
In Crim. Case No. T-2056, accused-appellant was charged by the trial
court with frustrated murder but was convicted only for attempted murder. In
its Decision, the trial court explained that the failure of the prosecution to
present a medical certificate or competent testimonial evidence showing that
Crispina would have died from her wound without medical intervention,
justified the accused's conviction for attempted murder only.
We call to mind People v. De La Cruz11 where this Court ruled that the
crime committed for the shooting of the victim was attempted murder and not
frustrated murder for the reason that "his injuries, though no doubt serious,
were not proved fatal such that without timely medical intervention, they

118
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12155 February 2, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avanceña for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly weapon
was used. The blow was directed toward a vital part of the body. The
aggressor stated his purpose to kill, thought he had killed, and threw the
body into the bushes. When he gave himself up he declared that he had
killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The
accused rushed upon the girl suddenly and struck her from behind, in part at
least, with a sharp bolo, producing a frightful gash in the lumbar region and
slightly to the side eight and one-half inches long and two inches deep,
severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the
reason that she had theretofore charged him criminally before the local
officials with having raped her and with being the cause of her pregnancy. He
was her mother's querido and was living with her as such at the time the
crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is
the precise crime of which he should be convicted. It is contended, in the first
place, that, if death has resulted, the crime would not have been murder but
homicide, and in the second place, that it is attempted and not frustrated
homicide.
As to the first contention, we are of the opinion that the crime committed
would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible blow in
the back and side with his bolo. Such an attack necessitates the finding that
it was made treacherously; and that being so the crime would have been
qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code defines a
frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission
of the felony directly by overt acts, and does not perform all the acts
of execution which constitute the felony by reason of some cause or
accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the
defendant performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime
cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some
outside cause from performing all of the acts which should produce the
crime. In other words, to be an attempted crime the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and compels
him to stop prior to the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the
consummation of the crime and voluntarily desists from proceeding further, it
can not be an attempt. The essential element which distinguishes attempted
from frustrated felony is that, in the latter, there is no intervention of a foreign
or extraneous cause or agency between the beginning of the commission of
the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of
the acts which should produce the crime. He is stopped short of that point by
some cause apart from his voluntary desistance.
119
To put it in another way, in case of an attempt the offender never passes the
subjective phase of the offense. He is interrupted and compelled to desist by
the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is
completely passed. Subjectively the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was due to
something beyond his control.
The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and
the last act performed by the offender which, with the prior acts, should result
in the consummated crime. From that time forward the phase is objective. It
may also be said to be that period occupied by the acts of the offender over
which he has control — that period between the point where he begins and
the points where he voluntarily desists. If between these two points the
offender is stopped by reason of any cause outside of his own voluntary
desistance, the subjective phase has not been passed and it is an attempt. If
he is not so stopped but continues until he performs the last act, it is
frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being
neither aggravating nor mitigating circumstance. As so modified, the
judgment is affirmed with costs. So ordered.
FIRST DIVISION
G.R. No. 165483 September 12, 2006
RUJJERIC Z. PALAGANAS,1 petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not the first time the song
"My Way"2 has triggered violent behavior resulting in people coming to blows.
In the case at bar, the few lines of the song depicted what came to pass
when the victims and the aggressors tried to outdo each other in their
rendition of the song.
In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules
of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30
September 2004,4 affirming with modification the Decision of the Regional
Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases
No. U-9608, U-9609, and U-9610 and U-9634, dated 28 October
1998,5finding petitioner guilty beyond reasonable doubt of the crime of
Homicide under Article 249 of the Revised Penal Code, and two (2) counts of
Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the
same Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas
(Ferdinand), were charged under four (4) separate Informations 6 for two (2)
counts of Frustrated Murder, one (1) count of Murder, and one (1) count for
Violation of COMELEC Resolution No. 29587 relative to Article 22, Section
261, of the Omnibus Election Code,8allegedly committed as follows:
CRIMINAL CASE NO. U-9608
120
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously shoot
SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot
wound penetrating perforating abdomen, urinary bladder, rectum
bullet sacral region," the accused having thus performed all the acts
of execution which would have produced the crime of Murder as a
consequence, but which nevertheless, did not produce it by reason
of the causes independent of the will of the accused and that is due
to the timely medical assistance rendered to said Servillano J. Ferrer,
Jr. which prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously shoot
MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot
wound on the right shoulder, the accused having thus performed all
the acts of execution which would have produced the crime of
murder as a consequence, but which nevertheless, did not produce it
by reason of the causes independent of the will of the accused and
that is due to the medical assistance rendered to said Michael
"Boying" Ferrer which prevented his death, to his damage and
prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously shoot
MELTON FERRER alias "TONY FERRER", inflicting upon him
mortal gunshot wounds in the head and right thigh which caused
the instantaneous death of said Melton "Tony" Ferrer, to the
damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as amended by
R.A. 7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which is within the election period
at Poblacion, Manaoag, Pangasinan, and within the jurisdiction of
this Honorable Court, the above-named accused did then and there
willfully, unlawfully and feloniously bear and carry one (1) caliber .38
without first securing the necessary permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of
the OMNIBUS ELECTION CODE, as amended.9 (Underscoring
supplied.)
When arraigned on separate dates,10 petitioner and Ferdinand entered
separate pleas of "Not Guilty." Upon motion of Ferdinand,11 the four cases
were consolidated and were assigned to Branch 46 of the RTC in Urdaneta,
Pangasinan.12
The factual antecedents as viewed by the prosecution, are summarized in
the Comment dated 18 April 2005 of the Office of the Solicitor General,13 to
wit:
On January 16, 1998, around 8:00 in the evening, brothers
Servillano, [Melton] and Michael, all surnamed Ferrer were having a
drinking spree in their house because [Melton], who was already
living in San Fernando, La Union, visited his three brothers and
mother at their house in Sitio Baloking, Poblacion, Manaoag,
Pangasinan. At 9:45 in the evening, the three brothers decided to
proceed to Tidbits Videoke bar located at the corner of Malvar and
Rizal Streets, Poblacion, Manaoag to continue their drinking spree
and to sing. Inside the karaoke bar, they were having a good time,
singing and drinking beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived
together with Ferdinand Palaganas and Virgilio Bautista. At that time,
only the Ferrer brothers were the customers in the bar. The two
groups occupied separate tables. Later, when Jaime Palaganas was
singing, [Melton] Ferrer sang along with him as he was familiar with
the song [My Way]. Jaime however, resented this and went near the
121
 table of the Ferrer brothers and said in Pangasinan dialect "As if you
are tough guys." Jaime further said "You are already insulting me
inthat way." Then, Jaime struck Servillano Ferrer with the
microphone, hitting the back of his head. A rumble ensued between
the Ferrer brothers on the one hand, and the Palaganases, on the
other hand. Virgilio Bautista did not join the fray as he left the place.
During the rumble, Ferdinand went out of the bar. He was however
pursued by Michael. When Servillano saw Michael, he also went out
and told the latter not to follow Ferdinand. Servillano and Michael
then went back inside the bar and continued their fight with Jaime.
Meantime, Edith Palaganas, sister of Jaime and the owner of the bar,
arrived and pacified them. Servillano noticed that his wristwatch was
missing. Unable to locate the watch inside the bar, the Ferrer
brothers went outside. They saw Ferdinand about eight (8) meters
away standing at Rizal Street. Ferdinand was pointing at them and
said to his companion, later identified as petitioner [Rujjeric]
Palaganas, "Oraratan paltog mo lara", meaning "They are the ones,
shoot them." Petitioner then shot them hitting Servillano first at the
left side of the abdomen, causing him to fall on the ground, and
followed by [Melton] who also fell to the ground. When Servillano
noticed that [Melton] was no longer moving, he told Michael
"Bato, bato." Michael picked up some stones and threw them at
petitioner and Ferdinand. The latter then left the place. Afterwards,
the police officers came and the Ferrer brothers were brought to the
Manaoag Hospital and later to Villaflor Hospital in Dagupan.
Servillano later discovered that [Melton] was fatally hit in the head
while Michael was hit in the right shoulder.
On the other hand, the defense, in its Appellant's Brief dated 3 December
1999,14 asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a drinking
session at their house, the brothers Melton (Tony), Servillano
(Junior) and Michael (Boying), all surnamed Ferrer, occupied a table
inside the Tidbits Café and Videoke Bar and started drinking and
singing. About thirty minutes later, Jaime Palaganas along with his
nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the
bar and occupied a table near that of the Ferrers'.
After the Ferrers' turn in singing, the microphone was handed over to
Jaime Palaganas, who then started to sing. On his third song [My
Way], Jaime was joined in his singing by Tony Ferrer, who sang
loudly and in an obviously mocking manner. This infuriated Jaime,
who then accosted Tony, saying, "You are already insulting us." The
statement resulted in a free for all fight between the Ferrers', on one
hand, and the Palaganases on the other. Jaime was mauled and
Ferdinand, was hit on the face and was chased outside of the bar by
Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric
Palaganas, his brother, and sought the help of the latter. Rujjeric,
stirred from his sleep by his brother's shouts, went out of his house
and, noticing that the van of his uncle was in front of the Tidbits
Videoke Bar, proceeded to that place. Before reaching the bar,
however, he was suddenly stoned by the Ferrer brothers and was hit
on different parts of his body, so he turned around and struggled to
run towards his house. He then met his brother, Ferdinand, going
towards the bar, so he tugged him and urged him to run towards the
opposite direction as the Ferrer brothers continued pelting them with
large stones. Rujjeric then noticed that Ferdinand was carrying a
gun, and, on instinct, grabbed the gun from the latter, faced the
Ferrer brothers and fired one shot in the air to force the brothers to
retreat. Much to his surprise, however, the Ferrer brothers continued
throwing stones and when (sic) the appellant was again hit several
times. Unable to bear the pain, he closed his eyes and pulled the
trigger.
On 28 October 1998, the trial court rendered its Decision finding petitioner
guilty only of the crime of Homicide and two (2) counts of Frustrated
Homicide.15 He was, however, acquitted of the charge of Violation of
COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus
Election Code.16 On the other hand, Ferdinand was acquitted of all the
charges against him.17
In holding that petitioner is liable for the crimes of Homicide and Frustrated
Homicide but not for Murder and Frustrated Murder, the trial court explained
that there was no conspiracy between petitioner and Ferdinand in killing
Melton and wounding Servillano and Michael.18 According to the trial court,
the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and
uttered to petitioner "Araratan, paltog mo lara!" (They are the ones, shoot
them!), does not in itself connote common design or unity of purpose to kill. It
also took note of the fact that petitioner was never a participant in the rumble
inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16 January
1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who
was being assaulted by the Ferrer brothers. It further stated that the shooting
was instantaneous and without any prior plan or agreement with Ferdinand to
execute the same. It found that petitioner is solely liable for killing Melton and
for wounding Servillano and Michael, and that Ferdinand is not criminally
responsible for the act of petitioner.
122
Further, it declared that there was no treachery that will qualify the crimes as
murder and frustrated murder since the Ferrer brothers were given the
chance to defend themselves during the shooting incident by stoning the
petitioner and Ferdinand.19 It reasoned that the sudden and unexpected
attack, without the slightest provocation on the part of the victims, was
absent. In addition, it ratiocinated that there was no evident premeditation as
there was no sufficient period of time that lapsed from the point where
Ferdinand called the petitioner for help up to the point of the shooting of the
Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard
Ferdinand calling him for help. Immediately, petitioner, still clad in pajama
and sleeveless shirt, went out of his room to meet Ferdinand. Thereafter,
both petitioner and Ferdinand went to the videoke bar where they met the
Ferrer brothers and, shortly afterwards, the shooting ensued. In other words,
according to the trial court, the sequence of the events are so fast that it is
improbable for the petitioner to have ample time and opportunity to then plan
and organize the shooting.
Corollarily, it also stated that petitioner cannot successfully invoke self-
defense since there was no actual or imminent danger to his life at the time
he and Ferdinand saw the Ferrer brothers outside the videoke bar. 21 It noted
that when petitioner and Ferdinand saw the Ferrer brothers outside the
videoke bar, the latter were not carrying any weapon. Petitioner then was
free to run or take cover when the Ferrer brothers started pelting them with
stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated
that the use by petitioner of a gun was not a reasonable means to prevent
the attack of the Ferrer brothers since the latter were only equipped with
stones, and that the gun was deadlier compared to stones. Moreover, it also
found that petitioner used an unlicensed firearm in shooting the Ferrer
brothers.22
As regards the Violation of COMELEC Resolution No. 2958, in relation to
Section 261 of the Omnibus Election Code, the trial court acquitted the
petitioner of the offense as his use and possession of a gun was not for the
purpose of disrupting election activities.23 In conclusion, the trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
HOMICIDE (Not Murder) with the use of an unlicensed firearm. The
penalty imposable is in its maximum period which is 20 years. The
Court sentences [Rujjeric] Palaganas to suffer the penalty of
Reclusion Temporal in its maximum period or 20 years of
imprisonment; and to pay the heirs of [MELTON] Ferrer the sum
of P7,791.50 as actual medical expenses of [MELTON]
Ferrer; P500,000.00 as moral damages representing unearned
income of [MELTON]; P50,000.00 for the death of
[MELTON]; P50,000.00 for exemplary damages and P100,000.00 for
burial and funeral expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to prove the
guilt of Ferdinand Palaganas beyond reasonable doubt.
2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of
an unlicensed firearm, the Court sentences him to suffer the penalty
of Prision Mayor in its maximum period or 12 years of imprisonment
and to pay Servillano Ferrer the sum of P163,569.90 for his medical
expenses and P50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to
prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of
an unlicensed firearm, the Court sentences him to suffer the penalty
of Prision Mayor in its maximum period or 12 years of imprisonment;
and to pay Michael Ferrer the sum of P2,259.35 for his medical
expenses and P50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to
prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the
mother of the Ferrer brothers, the amount of P100,000.00 as
attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to
prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of
the crime of Violation of COMELEC Resolution No. 2958 in relation
with Section 261 of the Omnibus Election Code, the Court ACQUITS
[RUJJERIC] PALAGANAS.24
123
Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated
28 October 1998, before the Court of Appeals. In its Decision dated 30
September 2004, the Court of Appeals affirmed with modifications the
assailed RTC Decision. In modifying the Decision of the trial court, the
appellate court held that the mitigating circumstance of voluntary surrender
under Article 13, No. 7, of the Revised Penal Code should be appreciated in
favor of petitioner since the latter, accompanied by his counsel, voluntarily
appeared before the trial court, even prior to its issuance of a warrant of
arrest against him.25 It also stated that the Indeterminate Sentence Law
should be applied in imposing the penalty upon the petitioner.26 The
dispositive portion of the Court of Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby AFFIRMED,
subject to the MODIFICATION that the penalty to be imposed for the
crimes which the appellant committed are as follows:
(1) For Homicide (under Criminal Case No. U-9610), the appellant is
ordered to suffer imprisonment of ten (10) years of prision mayor as
minimum to seventeen (17) years and four (4) months of reclusion
temporal as maximum. Appellant is also ordered to pay the heirs of
Melton Ferrer civil indemnity in the amount of P50,000.00, moral
damages in the amount of P50,000.00 without need of proof and
actual damages in the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U-9609), the
appellant is hereby ordered to suffer imprisonment of four (4) years
and two (2) months of prision correcional as minimum to ten (10)
years of prision mayor as maximum. Appellant is also ordered to pay
Michael Ferrer actual damages in the amount of P2,259.35 and
moral damages in the amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-9608), the
appellant is hereby penalized with imprisonment of four (4) years and
two (2) months of prision correcional as minimum to ten (10) years
of prision mayor as maximum. Appellant is also ordered to pay
Servillano Ferrer actual damages in the amount of P163,569.90 and
moral damages in the amount of P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition for Review
before this Court on the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT
ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF
LAWFUL SELF-DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid self-
defense are present in the instant case and, thus, his acquittal on all the
charges is proper; that when he fired his gun on that fateful night, he was
then a victim of an unlawful aggression perpetrated by the Ferrer brothers;
that he, in fact, sustained an injury in his left leg and left shoulder caused by
the stones thrown by the Ferrer brothers; that the appellate court failed to
consider a material evidence described as "Exhibit O"; that "Exhibit O" should
have been given due weight since it shows that there was slug embedded on
the sawali wall near the sign "Tidbits Café and Videoke Bar"; that the height
from which the slug was taken was about seven feet from the ground; that if
it was true that petitioner and Ferdinand were waiting for the Ferrer brothers
outside the videoke bar in order to shoot them, then the trajectory of the
bullets would have been either straight or downward and not upward
considering that the petitioner and the Ferrer brothers were about the same
height (5'6"-5'8"); that the slug found on the wall was, in fact, the "warning
shot" fired by the petitioner; and, that if this exhibit was properly appreciated
by the trial court, petitioner would be acquitted of all the charges.29
Moreover, petitioner contended that the warning shot proved that that the
Ferrer brothers were the unlawful aggressors since there would have been
no occasion for the petitioner to fire a warning shot if the Ferrer brothers did
not stone him; that the testimony of Michael in the trial court proved that it
was the Ferrer brothers who provoked petitioner to shoot them; and that the
Ferrer brothers pelted them with stones even after the "warning shot."30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the
elements and/or requisites in order that a plea of self-defense may be validly
considered in absolving a person from criminal liability, viz:
ART. 11. Justifying circumstances. – The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur;
First. Unlawful aggression;
124
 Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself. x x x.
As an element of self-defense, unlawful aggression refers to an assault or
attack, or a threat thereof in an imminent and immediate manner, which
places the defendant's life in actual peril.31 It is an act positively strong
showing the wrongful intent of the aggressor and not merely a threatening or
intimidating attitude.32 It is also described as a sudden and unprovoked
attack of immediate and imminent kind to the life, safety or rights of the
person attacked.33
There is an unlawful aggression on the part of the victim when he puts in
actual or imminent peril the life, limb, or right of the person invoking self-
defense. There must be actual physical force or actual use of weapon.34 In
order to constitute unlawful aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril sought to be
avoided is imminent and actual, not merely imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on the
part of the Ferrer brothers that justified the act of petitioner in shooting them.
There were no actual or imminent danger to the lives of petitioner and
Ferdinand when they proceeded and arrived at the videoke bar and saw
thereat the Ferrer brothers. It appears that the Ferrer brothers then were
merely standing outside the videoke bar and were not carrying any weapon
when the petitioner arrived with his brother Ferdinand and started firing his
gun.36
Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to
shoot them by pelting the latter with stones, the shooting of the Ferrer
brothers is still unjustified. When the Ferrer brothers started throwing stones,
petitioner was not in a state of actual or imminent danger considering the
wide distance (4-5 meters) of the latter from the location of the
former.37 Petitioner was not cornered nor trapped in a specific area such that
he had no way out, nor was his back against the wall. He was still capable of
avoiding the stones by running away or by taking cover. He could have also
called or proceeded to the proper authorities for help. Indeed, petitioner had
several options in avoiding dangers to his life other than confronting the
Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left shoulder,
allegedly caused by the stones thrown by the Ferrer brothers, does not
signify that he was a victim of unlawful aggression or that he acted in self-
defense.38There is no evidence to show that his wounds were so serious and
severe. The superficiality of the injuries sustained by the petitioner is no
indication that his life and limb were in actual peril.39
Petitioner's assertion that, despite the fact that he fired a warning shot, the
Ferrer brothers continued to pelt him with stones,40 will not matter exonerate
him from criminal liability. Firing a warning shot was not the last and only
option he had in order to avoid the stones thrown by the Ferrer brothers. As
stated earlier, he could have run away, or taken cover, or proceeded to the
proper authorities for help. Petitioner, however, opted to shoot the Ferrer
brothers.
It is significant to note that the shooting resulted in the death of Melton, and
wounding of Servillano and Michael. With regard to Melton, a bullet hit his
right thigh, and another bullet hit his head which caused his instant
death.41 As regards Servillano, a bullet penetrated two of his vital organs,
namely, the large intestine and urinary bladder.42 He underwent two (2)
surgeries in order to survive and fully recover.43 Michael, on the other hand,
sustained a gunshot wound on the right shoulder.44 It must also be noted that
the Ferrer brothers were shot near the videoke bar, which contradict
petitioner's claim he was chased by the Ferrer brothers. Given the foregoing
circumstances, it is difficult to believe that the Ferrer brothers were the
unlawful aggressors. As correctly observed by the prosecution, if the
petitioner shot the Ferrer brothers just to defend himself, it defies reason why
he had to shoot the victims at the vital portions of their body, which even led
to the death of Melton who was shot at his head.45 It is an oft-repeated rule
that the nature and number of wounds inflicted by the accused are constantly
and unremittingly considered important indicia to disprove a plea of self-
defense.46
Let it not be forgotten that unlawful aggression is a primordial element in self-
defense.47 It is an essential and indispensable requisite, for without unlawful
aggression on the part of the victim, there can be, in a jural sense, no
complete or incomplete self-defense.48 Without unlawful aggression, self-
defense will not have a leg to stand on and this justifying circumstance
cannot and will not be appreciated, even if the other elements are
present.49 To our mind, unlawful aggression, as an element of self-defense,
is wanting in the instant case.
The second element of self-defense requires that the means employed by
the person defending himself must be reasonably necessary to prevent or
repel the unlawful aggression of the victim. The reasonableness of the
means employed may take into account the weapons, the physical condition
of the parties and other circumstances showing that there is a rational
equivalence between the means of attack and the defense.50 In the case at
125
bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable
and necessary means of repelling the aggression allegedly initiated by the
Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far
deadlier compared to the stones thrown by the Ferrer brothers.51
Moreover, we stated earlier that when the Ferrer brothers allegedly threw
stones at the petitioner, the latter had other less harmful options than to
shoot the Ferrer brothers. Such act failed to pass the test of reasonableness
of the means employed in preventing or repelling an unlawful aggression.
With regard to the second issue, petitioner asserts that the Court of Appeals
erred in not acquitting him on the ground of lawful self-defense.
Petitioner's argument is bereft of merit.
In resolving criminal cases where the accused invokes self-defense to
escape criminal liability, this Court consistently held that where an accused
admits killing the victim but invokes self-defense, it is incumbent upon the
accused to prove by clear and convincing evidence that he acted in self-
defense.52 As the burden of evidence is shifted on the accused to prove all
the elements of self-defense, he must rely on the strength of his own
evidence and not on the weakness of the prosecution.53
As we have already found, there was no unlawful aggression on the part of
the Ferrer brothers which justified the act of petitioner in shooting them. We
also ruled that even if the Ferrer brothers provoked the petitioner to shoot
them, the latter's use of a gun was not a reasonable means of repelling the
act of the Ferrer brothers in throwing stones. It must also be emphasized at
this point that both the trial court and the appellate court found that petitioner
failed to established by clear and convincing evidence his plea of self-
defense. In this regard, it is settled that when the trial court's findings have
been affirmed by the appellate court, said findings are generally conclusive
and binding upon this Court.54 In the present case, we find no compelling
reason to deviate from their findings. Verily, petitioner failed to prove by clear
and convincing evidence that he is entitled to an acquittal on the ground of
lawful self-defense.
On another point, while we agree with the trial court and the Court of Appeals
that petitioner is guilty of the crime of Homicide for the death of Melton in
Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries
sustained by Servillano in Criminal Case No. U-9608, we do not, however,
concur in their ruling that petitioner is guilty of the crime of Frustrated
Homicide as regards to Michael in Criminal Case No. U-9609. We hold that
petitioner therein is guilty only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the stages of a felony
in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies. –
Consummated felonies, as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for the for
its execution and accomplishment are present; and it
is frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason or causes independent of
the will of the perpetrator.
There is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance (italics
supplied).
Based on the foregoing provision, the distinctions between frustrated and
attempted felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the acts of
execution which should produce the felony as a consequence;
whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform all
the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the
crime is some cause independent of the will of the perpetrator; on the
other hand, in attempted felony, the reason for the non-fulfillment of
the crime is a cause or accident other than the offender's own
spontaneous desistance.
In addition to these distinctions, we have ruled in several cases that when the
accused intended to kill his victim, as manifested by his use of a deadly
weapon in his assault, and his victim sustained fatal or mortal wound/s but
did not die because of timely medical assistance, the crime committed is
frustrated murder or frustrated homicide depending on whether or not any of
the qualifying circumstances under Article 249 of the Revised Penal Code
are present.55 However, if the wound/s sustained by the victim in such a case
were not fatal or mortal, then the crime committed is only attempted murder
or attempted homicide.56 If there was no intent to kill on the part of the
126
accused and the wound/s sustained by the victim were not fatal, the crime
committed may be serious, less serious or slight physical injury. 57
Based on the medical certificate of Michael, as well as the testimony of the
physician who diagnosed and treated Michael, the latter was admitted and
treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single
gunshot wound in his right shoulder caused by the shooting of petitioner. 58 It
was also stated in his medical certificate that he was discharged on the same
day he was admitted and that the treatment duration for such wound would
be for six to eight days only.59 Given these set of undisputed facts, it is clear
that the gunshot wound sustained by Michael in his right shoulder was not
fatal or mortal since the treatment period for his wound was short and he was
discharged from the hospital on the same day he was admitted therein.
Therefore, petitioner is liable only for the crime of attempted homicide as
regards Michael in Criminal Case No. U-9609.
With regard to the appreciation of the aggravating circumstance of use of an
unlicensed firearm, we agree with the trial court and the appellate court that
the same must be applied against petitioner in the instant case since the
same was alleged in the informations filed against him before the RTC and
proven during the trial. However, such must be considered as a special
aggravating circumstance, and not a generic aggravating circumstance.
Generic aggravating circumstances are those that generally apply to all
crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6,
9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of
increasing the penalty for the crime to its maximum period, but it cannot
increase the same to the next higher degree. It must always be alleged and
charged in the information, and must be proven during the trial in order to be
appreciated.60 Moreover, it can be offset by an ordinary mitigating
circumstance.
On the other hand, special aggravating circumstances are those which arise
under special conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the penalty to the next
higher degree. Examples are quasi-recidivism under Article 160 and complex
crimes under Article 48 of the Revised Penal Code. It does not change the
character of the offense charged.61 It must always be alleged and charged in
the information, and must be proven during the trial in order to be
appreciated.62 Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning and effect of generic and
special aggravating circumstances are exactly the same except that in case
of generic aggravating, the same CAN be offset by an ordinary mitigating
circumstance whereas in the case of special aggravating circumstance, it
CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an
aggravating circumstance provided for under Presidential Decree No.
1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its
pertinent provision states:
If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
In interpreting the same provision, the trial court reasoned that such provision
is "silent as to whether it is generic or qualifying."65 Thus, it ruled that "when
the law is silent, the same must be interpreted in favor of the
accused."66Since a generic aggravating circumstance is more favorable to
petitioner compared to a qualifying aggravating circumstance, as the latter
changes the nature of the crime and increase the penalty thereof by degrees,
the trial court proceeded to declare that the use of an unlicensed firearm by
the petitioner is to be considered only as a generic aggravating
circumstance.67 This interpretation is erroneous since we already held in
several cases that with the passage of Republic Act. No. 8294 on 6 June
1997, the use of an unlicensed firearm in murder or homicide is now
considered as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.68 Republic Act No. 8294 applies to the instant
case since it took effect before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm by the petitioner in the
instant case should be designated and appreciated as a SPECIAL
aggravating circumstance and not merely a generic aggravating
circumstance.
As was previously established, a special aggravating circumstance cannot be
offset by an ordinary mitigating circumstance. Voluntary surrender of
petitioner in this case is merely an ordinary mitigating circumstance. Thus, it
cannot offset the special aggravating circumstance of use of unlicensed
firearm. In accordance with Article 64, paragraph 3 of the Revised Penal
Code, the penalty imposable on petitioner should be in its maximum period.69
As regards the civil liability of petitioner, we deem it necessary to modify the
award of damages given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both courts that
the proper amount of civil indemnity is P50,000.00, and that the proper
amount for moral damages is P50,000.00 pursuant to prevailing
jurisprudence.70However, based on the receipts for hospital, medicine,
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funeral and burial expenses on record, and upon computation of the same,
the proper amount of actual damages should be P42,374.18, instead
of P43,556.00. Actual damages for loss of earning capacity cannot be
awarded in this case since there was no documentary evidence to
substantiate the same.71 Although there may be exceptions to this
rule,72 none is availing in the present case. Nevertheless, since loss was
actually established in this case, temperate damages in the amount
of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article
2224 of the New Civil Code, temperate or moderate damages may be
recovered when the court finds that some pecuniary loss was suffered but its
amount cannot be proved with certainty. Moreover, exemplary damages
should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established.73 Based
on prevailing jurisprudence, the award of exemplary damages for homicide
is P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to
the award of actual damages and its corresponding amount since the same
is supported by documentary proof therein. The award of moral damages is
also consistent with prevailing jurisprudence. However, exemplary damages
should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established. Based on
prevailing jurisprudence, the award of exemplary damages for both the
attempted and frustrated homicide shall be P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of Appeals
dated 30 September 2004 is hereby AFFIRMED with the following
MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of
attempted homicide. The penalty imposable on the petitioner is prision
correccional under Article 51 of the Revised Penal Code.75 There being a
special aggravating circumstance of the use of an unlicensed firearm and
applying the Indeterminate Sentence of Law, the penalty now becomes four
(4) years and two (2) months of arresto mayor as minimum period to six (6)
years of prision correccional as maximum period. As regards the civil liability
of petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary
damages in the amount of P25,000.00 in addition to the actual damages and
moral damages awarded by the Court of Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for
the frustrated homicide is prision mayorunder Article 50 of the Revised Penal
Code.76 There being a special aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate Sentence Law, the
penalty now becomes six (6) years of prision correccional as minimum period
to twelve (12) years of prision mayor as maximum period. As regards the civil
liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual
damages and moral damages awarded by the Court of Appeals.
(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the
homicide is reclusion temporal under Article 249 of the Revised Penal
Code.77 There being a special aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate Sentence Law, the
penalty now is twelve (12) years of prision mayor as minimum period to
twenty (20) years of reclusion temporal as maximum period. As regards the
civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual
damages and moral damages awarded by the Court of Appeals. The actual
damages likewise awarded by the Court of Appeals is hereby reduced
to P42,374.18.
SO ORDERED
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26298 January 20, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
Hermogenes Caluag for appellant.
Attorney-General Jaranilla for appellee.
OSTRAND, J.:
This is an appeal from a judgment of the Court of First Instance of Manila
finding the defendant guilty of the crime of consummated rape and
sentencing him to suffer seventeen years, four months and one day
of reclusion temporal, with the accessory penalties provided by law and to
pay the costs.
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The victim of the crime was a child of 3 years and 11 months old and the
evidence is conclusive that the defendant endeavored to have carnal
intercourse with her, but there may be some doubt whether he succeeded in
penetrating the vagina before being disturbed by the timely intervention of
the mother and the sister of the child. The physician who examined the
genital organ of the child a few hours after the commission of the crime found
a slight inflammation of the exterior parts of the organ, indicating that an
effort had been made to enter the vagina, but in testifying before the court he
expressed doubts as to whether the entry had been effected. The mother of
the child testified that she found its genital organ covered with a sticky
substance, but that cannot be considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age that penetration
was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated
only as abusos deshonestos. We do not think so. It is probably true that a
complete penetration was impossible, but such penetration is not essential to
the commission of the crime; it is sufficient if there is a penetration of the
labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L.
R. A., 316) where the offended party was a child of the age of 3 years and 8
months the testimony of several physicians was to the effect that her labia of
the privates of a child of that age can be entered by a man's male organ to
the hymen and the defendant was found guilty of the consummated crime
rape.
There being no conclusive evidence of penetration of the genital organ of the
offended party, the defendant is entitled to the benefit of the doubt and can
only be found guilty of frustrated rape, but in view of the fact that he was
living in the house of the parents of the child as their guest, the aggravating
circumstance of abuse of confidence existed and the penalty must therefore
be imposed in its maximum degree.
The judgment appealed from is modified and the defendant-appellant is
hereby found guilty of the crime of frustrated rape and is sentenced to suffer
twelve years of prision mayor, with the accessory penalties prescribed by
law, and with the costs in both instances. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in
Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside
a boarding house at Victoria St., Poblacion, Borongan, Eastern
Samar, Philippines, and within the jurisdiction of this Honorable
Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and
with threats and intimidation, did, then and there wilfully, unlawfully
and feloniously lay with and succeeded in having sexual intercourse
with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the exhibits
were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and
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instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered
its decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape
(Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating
circumstance to offset the same, and considering the provisions of
the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION
MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR,
maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) Pesos, without subsidiary imprisonment in
case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its decision,
the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and
the appellant found guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion perpetua and to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside
its December 29, 1988 decision and forwarded the case to this Court,
considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg.
129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp.
71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student
at the St. Joseph's College at Borongan, Eastern Samar. Appellant
was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her
boarding house. Her classmates had just brought her home from a
party (p. 44, tsn, May 23, 1984). Shortly after her classmates had
left, she knocked at the door of her boarding house (p. 5, ibid). All of
a sudden, somebody held her and poked a knife to her neck. She
then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor was
locked from the inside, appellant forced complainant to use the back
door leading to the second floor (p. 77, ibid). With his left arm
wrapped around her neck and his right hand poking a "balisong" to
her neck, appellant dragged complainant up the stairs (p. 14, ibid).
When they reached the second floor, he commanded her to look for
a room. With the Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who hit her
head on the wall. With one hand holding the knife, appellant
undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra,
pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He
made her hold his penis and insert it in her vagina. She followed his
order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of his
penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount
him. In this position, only a small part again of his penis was inserted
into her vagina. At this stage, appellant had both his hands flat on
the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside the
room, she ran to another room. Appellant again chased her. She fled
to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on the
door. When there was no answer, she ran around the building and
knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on
the stairs crying. Pat. Donceras, the first policeman to see her, took
off his jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the
130
 boarding house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar
Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which states:
Physical Examination — Patient is fairly built, came in with
loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area
or over the vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely
enter and with difficulty; vaginal canal tight; no discharges
noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the
testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras
because they "show remarkable and vital inconsistencies and its incredibility
amounting to fabrication and therefore casted doubt to its candor, truth and
validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to
trivial inconsistencies which are not sufficient to blur or cast doubt on the
witnesses' straightforward attestations. Far from being badges of fabrication,
the inconsistencies in their testimonies may in fact be justifiably considered
as manifestations of truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed. The most candid
witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies
of the prosecution witnesses, discrepancies on minor details must be viewed
as adding credence and veracity to such spontaneous testimonies
(Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details
would be a strong indication of untruthfulness and lack of spontaneity
(People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609).
However, one of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked her to hold and
guide his penis in order to have carnal knowledge of her. According to the
accused, this is strange because "this is the only case where an aggressor's
advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been
meritorious had the testimony of the victim ended there. The victim testified
further that the accused was holding a Batangas knife during the aggression.
This is a material part of the victim's testimony which the accused
conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings
of fact of the trial court on the credibility of witnesses should be accorded the
highest respect because it has the advantage of observing the demeanor of
witnesses and can discern if a witness is telling the truth (People v. Samson,
G.R. No. 55520, August 25, 1989). We quote with favor the trial court's
finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is
not much to be desired as to the sincerity of the offended party in her
testimony before the court. Her answer to every question profounded
(sic), under all circumstances, are plain and straightforward. To the
Court she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is inculcated into
131
 the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is
necessary to show that rape was committed provided her testimony is clear
and free from contradiction and her sincerity and candor, free from suspicion
(People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People
v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v.
Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in
this case did not only state that she was raped but she testified convincingly
on how the rape was committed. The victim's testimony from the time she
knocked on the door of the municipal building up to the time she was brought
to the hospital was corroborated by Pat. Donceras. Interpreting the findings
as indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast,
multiple pinpoint marks, circumscribed hematoma at the anterior neck,
erythematous area surrounding the vaginal orifice and tender vulva, are
conclusive proof of struggle against force and violence exerted on the victim
(pp. 52-53, Rollo). The trial court even inspected the boarding house and
was fully satisfied that the narration of the scene of the incident and the
conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe
enough to carry the weight of both accused and offended party
without the slightest difficulty, even in the manner as narrated. The
partitions of every room were of strong materials, securedly nailed,
and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints
(People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA
265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony
(opening) to the ground which was correctly estimated to be less
than eight (8) meters, will perhaps occasion no injury to a frightened
individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio girl, like
the offended party to whom honor appears to be more valuable than
her life or limbs? Besides, the exposure of her private parts when
she sought assistance from authorities, as corroborated, is enough
indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she
was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982,
117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that even in
her nudity, she had to run away from the latter and managed to gain
sanctuary in a house owned by spouses hardly known to her. All
these acts she would not have done nor would these facts have
occurred unless she was sexually assaulted in the manner she
narrated.
The accused questions also the failure of the prosecution to present other
witnesses to corroborate the allegations in the complaint and the non-
presentation of the medico-legal officer who actually examined the victim.
Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People
v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of
the medico-legal officer who actually examined the victim, the trial court
stated that it was by agreement of the parties that another physician testified
inasmuch as the medico-legal officer was no longer available. The accused
did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even substantiated
and do not, therefore, merit consideration. We are convinced that the
accused is guilty of rape. However, We believe the subject matter that really
calls for discussion, is whether or not the accused's conviction
for frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and thus
convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor
General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements
of the crime of rape:
Art. 335. When and how rape is committed. — Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
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 1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious
and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
Carnal knowledge is defined as the act of a man in having sexual bodily
connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. —
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when
the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and
consummated stages apply to the crime of rape.1âwphi1 Our concern now is
whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed
all the acts of execution which would produce the felony and (2) that the
felony is not produced due to causes independent of the perpetrator's will. In
the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is
readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after
beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the
acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a
foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is his
intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element
which distinguishes attempted from frustrated felony is that, in the
latter, there is no intervention of a foreign or extraneous cause or
agency between the beginning of the commission of the crime and
the moment when all of the acts have been performed which should
result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary
desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime.Thus, the felony is
consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People
v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29,
1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974,
58 SCRA 505), We have set the uniform rule that for the consummation of
rape, perfect penetration is not essential. Any penetration of the female
organ by the male organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration of
the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al.,
53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of
execution was performed. The offender merely commenced the commission
of a felony directly by overt acts. Taking into account the nature, elements
and manner of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the case of People
v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of frustrated
rape there being no conclusive evidence of penetration of the genital organ
of the offended party. However, it appears that this is a "stray" decision
inasmuch as it has not been reiterated in Our subsequent decisions.
Likewise, We are aware of Article 335 of the Revised Penal Code, as
amended by Republic Act No. 2632 (dated September 12, 1960) and
133
Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted
or frustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated rape
is a dead provision. The Eriña case, supra, might have prompted the law-
making body to include the crime of frustrated rape in the amendments
introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the
genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a matter of fact, he tossed
back to the offended party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate
(Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal
declaration of the latter of uncertainty whether there was penetration
or not. It is true, and the Court is not oblivious, that conviction for
rape could proceed from the uncorroborated testimony of the
offended party and that a medical certificate is not necessary (People
v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case. The
testimony of the offended party is at variance with the medical
certificate. As such, a very disturbing doubt has surfaced in the mind
of the court. It should be stressed that in cases of rape where there is
a positive testimony and a medical certificate, both should in all
respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical
certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation)
and tender. It bears emphasis that Dr. Zamora did not rule out penetration of
the genital organ of the victim. He merely testified that there was uncertainty
whether or not there was penetration. Anent this testimony, the victim
positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
Q What do you mean when you said comply, or what act do you referred
(sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even
on the sole basis of the victim's testimony if credible (People v. Tabago, G.R.
No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No.
L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos.
L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an indispensable element in the
prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale
in favor of the accused because after a thorough review of the records, We
find the evidence sufficient to prove his guilt beyond reasonable doubt of the
crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever
the crime of rape is committed with the use of a deadly weapon, the penalty
shall be reclusion perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of
the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-
38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition
of the death penalty, the Court has since February 2, 1987 not imposed the
death penalty whenever it was called for under the Revised Penal Code but
instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R.
Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single
indivisible penalty under Article 335, paragraph 3, is imposed regardless of
any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713,
March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744,
May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
134
 THIRD DIVISION
[G.R. No. 126148. May 5, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO
QUIANOLA y ESCUADRO and EDUARDO ESCUADRO y
FLORO, accused-appellants.
DECISION
VITUG, J.:
In People vs. Orita,[1] this Court has declared that the crime of frustrated
rape is non-existent. The pronouncement, notwithstanding, on 01 March
1996, more than six years after the promulgation of the decision in Orita, the
Regional Trial Court ("RTC") of Cebu City, Branch 14, has convicted accused
Agapito Quianola y Escuadro and Eduardo Escuadro y Floro, herein
appellants, of the crime of frustrated rape, principally on the strength
of People vs. Eriia[2] which this Court, in the Orita decision, has considered to
be a stray decision. The 1st March 1996 decision of the RTC of Cebu City
imposing upon each of the accused the penalty of reclusion perpetua of Forty
(40) Years, has been brought up by them to this Court. The appeal opens up
the whole case for review.
The information, dated 06 April 1994, charging the two accused with the
crime of rape reads:
That on or about the 5th day of March, 1994, at about 11:30 oclock in the
evening, more or less, at Barangay Tangil, Municipality of Dumanjug,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping one another, with lewd design and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously lie and
succeed in having carnal knowledge of the offended party Catalina Carciller,
fifteen (15) years of age, against her will and consent.
"CONTRARY TO LAW.[3]
Already in force and effect at the time of the averred commission of the
crime are the provisions of Republic Act No. 7659, amending the Revised
Penal Code, which define and penalize rape, as follows:
ART. 335. When and how rape is committed. Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
"1. By using force or intimidation;
"2. When the woman is deprived of reason or otherwise unconscious; and
"3. When the woman is under twelve years of age or is demented.
"The crime of rape shall be punished by reclusion perpetua.
"Whenever the crime of rape is committed with the use of a deadly weapon
or by two or more persons, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
"When the rape is attempted or frustrated and a homicide is committed by
reason or on the occasion thereof, the penalty shall be reclusion perpetua to
death.
"When by reason or on the occasion of the rape, a homicide is committed,
the penalty shall be death.
"The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
"1. when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law-spouse of the parent of the
victim.
"2. when the victim is under the custody of the police or military authorities.
"3. when the rape is committed in full view of the husband, parent, any of the
children or other relatives within the third degree of consanguinity.
"4. when the victim is a religious or a child below seven (7) years old.
"5. when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.
135
"6. when committed by any member of the Armed Forces of the Philippines
or the Philippine National Police or any law enforcement agency.
"7. when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation.
Duly assisted by counsel, the two accused pleaded not guilty to the
crime charged. During the trial that ensued, the prosecution and the defense
presented their respective versions of the case.
The story of prosecution was the first to be told.
Catalina Carciller, her cousin 15-year-old Rufo Ginto and another male
companion named Richard Diaz, went to attend a dance at around ten oclock
in the evening of 05 March 1994 in Sitio Bangag, Tangil, Dumanjug,
Cebu. Catalina, born on 09 November 1978,[4] was just then fifteen (15)
years and four (4) months old. She was a student at the Bito-on National
Vocational School at Dumanjug, Cebu. About an hour later, they left the party
and were soon on their way home. The three unsuspecting youngsters
stopped momentarily to rest at a waiting shed beside the Tangil Elementary
School. Accused Agapito Quianola, a.k.a. Petoy, and accused Eduardo
Escuadro, a.k.a. Botiquil, who were both armed with guns, suddenly turned
up. Quianola, beaming his flashlight at the trio while Escuadro stood by,
focused his attention on Catalina.Quianola announced that he and Escuadro
were members of the New Peoples Army ("NPA").Quianola instructed
Escuadro to take care of the male companions of Catalina while he
(Quianola) held the latter at gunpoint.
Escuadro brought Diaz and Ginto outside the waiting shed area. He
ordered the duo to lie face down on the ground and then urinated at
them. While Escuadro was fixing the zipper of his pants, Diaz and Ginto were
able to escape and ran away. Meanwhile, Quianola, with his gun pointed at
Catalina, forcibly brought her towards the nearby school. Catalina heard a
gunfire but Quianola assured her that it was only an exploding
firecracker. When Escuadro again showed up, Catalina asked about her two
friends. Quianola replied that he had ordered them to go home.Catalina
begged that she herself be allowed to leave. Pretending to agree, they
walked the path towards the road behind the school. Then, unsuspectingly,
Quianola forced Catalina to sit on the ground. She resisted but Quianola,
pointing his gun at her, warned her that if she would not accede to what he
wanted, he would kill her. Catalina started to cry. Quianola told Escuadro to
remove her denim pants. Catalina struggled to free herself from Escuadro's
hold but to no avail.Escuadro ultimately succeeded in undressing
her. Quianola unzipped his pants and laid on top of her while Escuadro held
her legs. Quianola started to pump, to push and pull[5] even as Catalina still
tried desperately to free herself from him. She felt his organ "on the lips of
(her) genitalia.[6]When Quianola had satisfied his lust, Escuadro took his turn
by placing himself on top of Catalina. Catalina could feel the sex organ of
Escuadro on the lips of (her) vulva[7] while he made a push and pull
movement. Quianola, who stood by, kept on smoking a cigarette.
Escuadro and Quianola scampered immediately after Catalina's
ordeal. Failing to find her pair of pants and panty, Catalina was left wearing
only her T-shirt and brassieres. Catalina just then sat down, not knowing
what to do, until she finally started to run home fearing that she might be
followed. Upon reaching home, Catalina went upstairs and, afraid that the
culprits would still come after her, hid herself behind the door. Baffled by
Catalina's strange behavior, her mother and her elder sister took turns in
interrogating her. Catalina finally said that she was raped but she would not
reveal the names of the persons who had committed the dastardly act
because of their threat.
Guillermo Zozobrado learned from his wife, Catalinas sister, that
Catalina had been raped.He promptly repaired to the municipal hall of
Dumanjug to report the crime. Policemen were immediately dispatched to the
Carcillers residence. Still in a state of shock, Catalina initially kept mum
about it; later, when the police officers returned at daytime, she was able to
respond to questions and to disclose that Petoy, referring to Agapito
Quianola, and Botiquil, the other accused Eduardo Escuadro, were the
persons who ravished her. The officers later invited her to the police station
to identify a suspect whom she positively identified to be Botiquil or Eduardo
Escuadro.
Living Case Report No. 94-MI-7,[8] prepared by Dr. Tomas P. Refe,
medico-legal officer of the National Bureau of Investigation ("NBI") of Region
7, Central Visayas, who conducted the physical examination of Catalina on
07 March 1994, showed that there was no evidence of extragenital physical
injury noted on the body of the Subject.[9] The genital examination yielded the
following findings on the victim:
Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both
coaptated.Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately
thick, wide, intact. Hymenal orifice, annular, admits a tube 1.8 cms. in
diameter with moderate resistance. Vaginal walls, tight and rogusities,
prominent.[10] (Italics supplied.)
The report concluded that the hymenal orifice, about 1.8 cms. in diameter,
was so small as to preclude complete penetration of an average-size adult
penis in erection without producing laceration.[11]
Against the evidence submitted by the prosecution, the accused, in their
defense, interposed alibi, ill motive on the part of an "uncle" of the
complainant, and insufficient identification.
136
 Accused Agapito Quianola, a member of the Philippine National Police
stationed at Naga, Cebu, testified that it was his day-off on 05 March
1994. At about 8:30 a.m., he and his wife, Leticia, who had just arrived in
Naga from Cebu City, proceeded to the house of his parents in Panla-an,
Dumanjug, to attend to the construction of their unfinished house. Quianola
helped Vidal Laojan and Nicasio Arnaiz in cementing the kitchen floor of their
house. The work was finished at around 11:00 oclock in the evening. After
Vidal and Nicasio had gone home, Quianola went to bed with his wife around
midnight until the following morning of 06 March 1994. He denied having
been in the company of his co-accused, Escuadro a.k.a. Botiquil, at any time
during the whole day and night of 05 March 1994. According to him,
Guillermo Zozobrado, Catalinas brother-in-law, concocted the rape charge to
get even with him because of an incident in August 1993 at a fiesta dance in
upper Tangil, Panla-an, when George Camaso, the husband of his sister
Jinga, got into trouble with Samuel Escuadro.
Quianola tried to pacify George Camaso who was then drunk but
Camaso suddenly hit him.He parried the blow and slapped Camaso on the
face. Zozobrado joined the fray and tried to hit Quianola but because
Zozobrado was drunk, he stumbled when Quianola had pushed him. [12] He
admitted that he had no misunderstanding of any kind with the complainant
and her parents themselves.
Leticia Quianola, the wife of accused Agapito Quianola, testified to
attest to her husband's good moral character and to corroborate his
testimony. Leticia said that after the workers had left their house at around
midnight, she and appellant talked for a while and then made love. Vidal
Laojan, the carpenter, was presented to state that Quianola was at home
helping the carpenters until past 11:00 oclock on the night of the
incident. Nicasio Arnaiz, a farmer and stone cutter, added that work in the
Quianola house had started late in the morning of 05 March 1994 since they
still waited for Quianola and his wife Pritsy to arrive. Work in the house, he
said, had stopped at about past 11:00 oclock that night.
Accused Eduardo Escuadro, a.k.a. Botiquil, declared that at about
seven oclock in the evening of 05 March 1994, he and Pablito Cuizon, Jr.,
went fishing in Tangil, Dumanjug, Cebu, until about ten oclock that
evening. After partaking of supper at around 11:30 p.m., they had a drinking
spree and went to bed at 12:00 midnight, waking up at 6:30 a.m. the
following day. He denied having been in the company of Quianola and
insisted that the rape charge had been the result of a mere mistaken
identity. Pablito Cuizon, Jr., corroborated Escuadros story about their being
together up until they parted company after a drinking spree.
The defense also presented the two police officers, PO2 William Beltran
and SPO2 Liberato Mascarinas, Jr., who took part in the investigation of the
crime, and Margarito Villaluna, a suspect at the early stages of the police
investigation who was in the frequent company of the accused. According to
PO2 Beltran, barangay tanods Gilly and George Zozobrado reported the
rape incident to him at midnight of 05 March 1994. He entered the report in
the temporary blotter because the suspect was unknown
then.[13] Accompanied by the two tanods, he went to the residence of the
victim and when he asked Catalina if she was able to recognize the
malefactors, she kept silent and continued crying. SPO2 Liberato
Mascarinas, Jr., asserted that, in the early morning of 06 March 1994, Gilly
and George Zozobrado went to the police station and named Pitoy Quianola,
Margarito Villaluna and Batiquil or Escuadro as being the suspects in the
rape incident. While on their way to the latter's respective residences, the
team met Catalina Carciller and party who were themselves about to repair
to the police headquarters. Mascarinas asked Catalina about the identities of
the rapists. She named "Pitoy Quianola but said she did not know the names
of the other persons although she could recognize them by face. Botiquil was
later brought to the police station. Pitoy Quianola by that time had already
gone to Naga. Margarito Villaluna declared that he had been in Panla-an,
Negros Oriental, from 05 March 1994 until 09 March 1994, harvesting
corn. His sister, Mercy Villaluna, testified that, in the morning of 06 March
1994, policemen in the company of barangay tanods, including Gilly
Zozobrado and his son Marcelo, came to their house looking for her brother
Margarito. Shortly after the group had left, another policeman, in the
company of one Erwin Quirante also came looking for her brother.The arrival
of the policemen prompted her to verify from the Coast Guard whether her
brother had indeed left for Negros Oriental. She was told that her brother was
in the boat that departed for Negros in early dawn of 02 March 1994. Still
unsatisfied with the result of her queries, Mercy went to Guinholngan where
she met Margarito.
Following the trial and submission of the case for decision, the court a
quo,[14] on 01 March 1996, found the two accused guilty beyond reasonable
doubt of the crime of "frustrated rape" and sentenced them accordingly; thus:
WHEREFORE, premises considered, the Court hereby finds guilty beyond
reasonable doubt the two accused Agapito `Petoy Quianola and Eduardo
Escuadro, alias `Batiquil, as principals by direct participation and
indispensable cooperation of the frustrated rape of the complaining witness
Catalina 'Cathy' Carciller, and considering the attendance in the commission
of the crime of the six (6) aggravating circumstances aforementioned, not
offset by any mitigating circumstance, hereby sentences these two accused
individually to Reclusion Perpetua of Forty (40) Years, plus all the accessory
penalties prescribed by law, and to pay the offended party civil indemnity in
the amount of P50,000.00 each.
"The Court also hereby recommends that under no circumstance should the
two accused be granted parole or conditional or absolute pardon, in view of
the extreme moral turpitude and perversity which they exhibited in the
137
commission of the crime not until they shall have served at least thirty (30)
years of the full range of forty (40) years of reclusion perpetua meted out
against them in this case. They should be interdicted for that length of time
from the usual and normal liasons (sic) and dealings with their fellowmen and
their community so as to protect the latter from their pernicious and insidious
examples. This is the most generous and charitable recommendation that the
Court can make for these two malefactors, short of imposing upon them the
supreme penalty of death, which the Court in other times and conditions
might have been compelled, as a matter of inexorable duty, to mete out
against them, in obedience to the implacable and peremptory demands and
dictates of retributive justice.
"Costs shall also be taxed against the two accused.
"SO ORDERED.[15]
The trial court ruled that the accused were liable for the crime of
frustrated rape with an eye to extending to the two accused the benefit of the
principle that in case of doubt criminal justice naturally leans in favor of the
milder form of penalty[16] but that, because of the existence of at least six (6)
aggravating circumstances,[17] not offset by any mitigating
[18]
circumstance, the accused should each be meted the penalty of reclusion
perpetua. It explained:
Now, the crime of rape had it been consummated and had it been committed
with the attendance of the above-mentioned aggravating circumstances, with
absolutely no offsetting mitigating circumstances, ought to be punished with
the mandatory penalty of death under the pertinent provisions of Section 11
and 23 of Republic Act No. 7659, which amended Article 335 of the Revised
Penal Code, and further amplified the aggravating circumstances
enumerated in Article 14 of the same code. But because the crime committed
here is 'merely' frustrated rape for the reasons heretofore discussed,
attended by the aforementioned six aggravating circumstances, not offset by
even one mitigating circumstance, the proper penalty to be imposed upon the
two principals, the two accused herein, both co-conspirators, by direct
participation and indispensable cooperation, of the frustrated rape, should be
one degree lower than the indivisible afflictive penalty of death, which is also
the indivisible afflictive penalty of reclusion perpetua which, under Section 21
of the amendatory statute, shall range from twenty years and one day to forty
years.[19]
In their appeal to this court, the two convicted accused interposed the
following assignment of errors:
"I. THE COURT ERRED IN DISREGARDING THE INCONSISTENCIES OF
THE PROSECUTION WITNESSES WHICH IF THOROUGHLY
CONSIDERED COULD HAVE ALTERED THE DECISION IN FAVOR OF
THE ACCUSED.
"II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF
COMPLAINING WITNESS CARCILLER EVEN IF THE SAME WERE
CLOUDED WITH GRAVE INCONSISTENCIES.
"III. THE COURT ERRED BY DISREGARDING THE TESTIMONIES OF
ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS.
"IV. THE COURT ERRED IN REFUSING TO CONSIDER THE REBUTTAL
EVIDENCE OF DEFENSE WITNESSES EVEN IF THE SAME WERE NOT
CONTROVERTED.
"V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO THE
TESTIMONIES OF THE POLICEMEN WHICH WERE UNCONTROVERTED
AND WITH PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF
DUTIES.
"VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY OF
FRUSTRATED RAPE AND OF SENTENCING THEM TO 40 YEARS OF
RECLUSION PERPETUA."[20]
In reviewing rape cases, this Court must again say that it has been
continually guided by the principles (a) that an accusation of rape can be
made with facility; it is difficult to prove, but more difficult for the person
accused, though innocent, to disprove; (b) that in view of the intrinsic nature
of the crime which usually involves only two persons, the testimony of the
complainant must be scrutinized with extreme caution; and (c) that the
evidence for the prosecution must stand or fall on its own merits and cannot
be allowed to draw strength from the weakness of the evidence of the
defense.[21] Expectedly, courts would scrupulously examine the testimony of
the complainant with the thought always in mind that the conviction of the
accused would have to depend heavily on the credibility of the offended
woman. It is not much different in this instance for, at bottom, appellants
assail the credibility of the prosecution witnesses, particularly that of the
complainant, in seeking a reversal of the judgment of conviction.
The doctrine, then again, is that the findings of the trial court on
credibility are entitled to highest respect and will not be disturbed on appeal
in the absence of any clear showing that the trial court has overlooked,
misunderstood or misapplied facts or circumstances of weight and substance
that could have consequential effects. The stringency with which appellate
138
tribunals have observed this rule is predicated on the undisputed vantage of "COURT:
the trial court in the evaluation and appreciation of testimonial evidence. [22]
"Q Why what were you wearing at that time?
In assailing Catalinas credibility, as against the assessment made by
the trial court which has described the victim's testimony to be impressed "A Pants.
with candor, spontaneity and naturalness, appellants theorize that the sexual "Q What kind of pants?
intercourse, if indeed true, could have only been committed against Catalina
in a sitting position, contrary to her declaration of having been made to lie on "A Denim.
the ground, because her T-shirt, marked Exhibit E, is not tainted with mud at
"TRIAL PROS. NAZARENO:
all especially the back if she were made to lie down. [23] The Court finds this
so-called incongruity committed by the complainant to be a feeble attempt to "Q Now, after Agapito Quianola ordered Eduardo Escuadro to remove
discredit her testimony. The Court is convinced of the sexual assault made your pants and panty what did Eduardo Escuadro do, if any?
against her. Here follows the testimony of Catalina on this score.
"A He did what Agapito Quianola commanded him.
Q You said that you were forced by Agapito Quianola to sit down, where
were you forced to sit down, in what particular place or area? "COURT:

"A Just behind the back of the school. "Q How about you, what what (sic) were you doing at that time?

"Q You were forced to sit down on the ground? "A I cried and tried to free myself.

"A Yes. "TRIAL PROS. NAZARENO:

"Q In effect did you sit down as ordered by him? "Q Now, when Eduardo Escuadro removed your pants and panty where
was Agapito Quianola and what did Agapito Quianola do?
"A I resisted.
"A He unzipped his pants.
"COURT:
"Q After that what happened?
"Q How did you resist?
In effect, were your pants and panty removed by Eduardo Escuadro?
"A I said I will not sit down.
"A Yes.
"TRIAL PROS. NAZARENO:
"Q Now, you said Agapito Quianola opened his fly or unzipped his pants,
"Q What did Agapito Quianola do, if any, when you resisted? when Agapito Quianola already unzipped his pants, what did he do?
"A He pointed his gun to me. "A He approached me and lay on top of me.
"Q When he pointed a gun at you, referring to Agapito Quianola, what did "Q When Agapito Quianola approached you and laid on top of you, what
he say? did Eduardo Escuadro do?
"A He said that if I will not accede to what he wanted me to do and if I will "A He was holding on to my legs.
shout, he will kill me.
"Q Then what happened after that?
"Q What did you do when you heard those words coming from Agapito
Quianola? "A Agapito Quianola started to pump, to push and pull.

"A I cried. "Q What did you do when Agapito Quianola was already on top of you
and made a push and pull on you?
"Q When you cried what did Agapito Quianola do, if any?
"A I struggled to free myself.
"A He ordered Eduardo Escuadro to remove my pants and panty.
139
 "Q After that what happened when Agapito Quianola was already on top
of you and kept on making a push and pull?
"A Eduardo Escuadro took his turn.
"Q What do you mean by took his turn, please specify what did Escuadro
do? He did what Agapito had just done to you?
"COURT:
"Q What did Agapito Quianola do to you actually?
"A He lay on top of me and did a push and pull movement.
"TRIAL PROS. NAZARENO:
"Q When Agapito Quianola lay on top of you and made a push and pull
movement, do you mean to say that he inserted his penis into your
vagina?
"A I felt something hard on the lips of my genitals.
"Q What is this something hard that you felt that touched the lips of your
vagina or vulva?
"A His organ or penis.
"Q When Agapito Quianola unzipped his pants, did you see his penis?
"A Yes.
"Q You also said that Eduardo Escuadro took his turn and laid on top of
you and made a push and pull on you, specifically what did Eduardo
Escuadro do?
"A The same as Agapito did, he was doing the push and pull movement.
"Q What did you feel when Eduardo Escuadro was already on top of you
and made a push and pull on you?
"A I held my breath.
"Q Did you see the penis of Eduardo Escuadro?
"A No.
"Q Now, did you feel that the penis of Escuadro was inserted into your
vagina?
"A I felt it on the lips of my vulva.[24]
The fact that she must have been lying down when violated has even more
been made clear by the defense on cross-examination. Thus:
Q Did you say any testimony in the direct that you were made to lie on the
ground at the time when you were raped by these two accused?
"A They pointed a gun at me and ordered me to lie down.
"Q Lie on the ground?
"A Yes.[25]
And on why her T-shirt was no longer soiled with mud when presented
in court, Catalina creditably explained that when it was offered in evidence,
she had already dusted and rid it of grass particles. At all events, whether
appellants spent their lust on Catalina in a sitting position or lying down
would not be of any real moment for what remained clear, established rather
convincingly by the prosecution, was that appellants had forced carnal
knowledge of the victim.
The reliance being made by appellants on the affidavit of Catalina in
order to discredit her is likewise futile. The Court has consistently ruled that
discrepancies between the statement of an affiant in an affidavit and those
made on the witness stand do not necessarily downgrade testimonial
evidence. Ex parte affidavits are usually incomplete and frequently prepared
by an administering officer and cast in the latters language and
understanding of what the affiant has said. Quite frequently, the affiant would
simply sign the affidavit after it has been read to him or to her.[26]
Not much differently could be said of Catalinas identification of
appellants as being her ravishers. On the witness stand, Catalina explained
that while she gave appellant Escuadros nickname Botiquil to the
investigating police officer, the latter did not mention that name in the affidavit
because, according to the officer, the affidavit was merely a shortcut.[27] In
her testimony, she was categorical that she had known appellants even
before the rape incident. She knew that appellant Quianola was a policeman
and a "popular maldito (nasty) in the locality.[28]Catalina knew that appellant
Escuadro, a resident of Punla-an not far from her own abode, was commonly
known as Batiquil (Botiquil). She could not have been mistaken in the
identification of the culprits since appellants themselves held a flashlight
which they used that added to the illumination shed by a fluorescent lamp
and two bulbs on the side of a house only some meters away.
As regards the allegation of appellants that the testimony of Catalina
contradicted in certain respects that of prosecution witness Rufo Ginto,
suffice it to say that the testimony of Rufo Ginto (who was noted by the trial
court not to be an intelligent witness[29]) was merely corroborative in nature
and neither dealt with the actual commission of the crime nor delved on
material points.
Catalinas candid and straightforward narration of the two sexual
assaults perpetrated on her on the night of the incident unmistakably
140
deserves credence. It is unbelievable that a young barrio lass would concoct
a tale of defloration, publicly admit having been ravished and her honor
tainted, allow the examination of her private parts, and undergo all the
trouble and inconvenience, not to mention the trauma and scandal of a public
trial, had she not in fact been raped and truly moved to protect and preserve
her honor, as well as to obtain justice, for the wicked acts committed against
her.[30] There is no plausible reason why Catalina should testify against
appellants, imputing upon them so grave a crime as rape if it did not
happen. This Court has consistently held that where there is no evidence to
show any dubious reason or improper motive why a prosecution witness
should testify falsely against the accused or implicate him in a serious
offense, the testimony deserves faith and credit.[31] So, also, the Court has
repeatedly said that the lone testimony of the victim in a rape case, if
credible, is enough to sustain a conviction.[32]
The positive identification of appellants as being the perpetrators of the
crime effectively effaces their alibi.[33] The rule is that affirmative testimony is
far weightier than a mere denial, especially when it comes from the mouth of
a credible witness.[34] Moreover, alibi might be aptly considered only when an
accused has been shown to be in some other place at the crucial time and
that it would have been physically impossible for him to be at the locus
criminis or its immediate vicinity at the time of the commission of the crime.[35]
In the context it is used in the Revised Penal Code, carnal knowledge,
unlike its ordinary connotation of sexual intercourse, does not necessarily
require that the vagina be penetrated or that the hymen be ruptured. [36] The
crime of rape is deemed consummated even when the mans penis merely
enters the labia or lips of the female organ[37] or, as once so said in a case,
by the mere touching of the external genitalia by a penis capable of
consummating the sexual act.[38] In People vs. Escober,[39] in convicting a
father of having raped twice his 11-year-old daughter, the Court has said:
While the evidence may not show full penetration on both occasions of rape,
the slightest penetration is enough to consummate the offense. In fact, there
was vulva penetration in both cases. The fact that the hymen was intact upon
examination does not belie rape for a broken hymen is not an essential
element of rape; nor does the fact that the victim has remained a virgin
negate the crime. What is fundamental is that the entrance, or at least the
introduction, of the male organ into the labia of the pudendum is proved. As
in the case at bar, it can be said that there was penetration, although
incomplete, and it was sufficient to prove carnal knowledge of a child under
twelve years of age. A medical examination is not an indispensable element
in a prosecution for rape. The accused may be convicted on the sole basis of
complainants testimony, if credible, and the findings of the medico-legal
officer do not disprove the commission of rape.
"There are no half measures or even quarter measures nor is their gravity
graduated by the inches of entry. Partial penile penetration is as serious as
full penetration. The rape is deemed consummated in either case. In a
manner of speaking, bombardment of the drawbridge is invasion enough
even if the troops do not succeed in entering the castle.[40] (Italics supplied.)
In another case, People vs. Gabayron,[41] where the accused has been found
guilty of raping his daughter, then less than twelve years old, the Court has
observed:
Accused-appellant draws attention to the fact that based on the medico-legal
findings, there is no showing that his daughters hymen was penetrated, nor
was there any evidence of injuries inflicted. However, jurisprudence is well-
settled to the effect that for rape to be consummated, rupture of the hymen is
not necessary, nor is it necessary that the vagina sustained a laceration
especially if the complainant is a young girl. The medical examination merely
stated that the smallness of the vaginal orifice only precludes COMPLETE
penetration. This does not mean that rape has not been committed. The fact
that there was no deep penetration of the victims vagina and that her hymen
was intact does not negate rape, since this crime is committed even with the
slightest penetration of a womans sex organ. Presence of a laceration in the
vagina is not an essential prerequisite to prove that a victim has been
raped. Research in medicine even points out that negative findings are of no
significance, since the hymen may not be torn despite repeated coitus. In
fact, many cases of pregnancy have been reported in women with
unruptured hymen.Entry of the labia or lips of the female organ merely,
without rupture of the hymen or laceration of the vagina, is sufficient to
warrant conviction. What must be proven in the crime of rape is merely the
introduction of the male organ into the labia of the pudendum and not the full
penetration of the complainants private part. As we held in Baculi: 'there
could still be a finding of rape even if despite the repeated intercourse over a
period of four years the complainant still retained an intact hymen without
signs of injury.' In the case at bench, Summers testimony has established
without a doubt that accused-appellants organ managed to come into contact
with her vagina, enough to cause her pain.[42] (Italics supplied.)
In its recent holding in People vs. Echegaray,[43] the Court has declared that
a mere knocking at the doors of the pudenda, so to speak, by the accused's
penis suffices to constitute the crime of rape as full entry into the victims
vagina is not required to sustain a conviction.
The trial court, in convicting appellants only of frustrated rape, ruled that
there was no "conclusive evidence of penetration of the genital organ of the
offended party,[44] in that: (a) Catalina had admitted that she did not spread
her legs and (b) the medico-legal officers findings showed she did not sustain
any extragenital injuries and her hymenal orifice was so small that an erect
141
average-size penis would not have completely penetrated it without causing
laceration. It would seem that the trial court failed to consider Catalinas
testimony in its entirety; she testified:
Q And when he mounted on top of you Escuadro was holding on to your
two feet and all the time that he (Quianola) was making a push and
pull on you, Escuadro was holding on to your two feet?
"A. Yes.
"COURT:
"Q Your two feet?
"A Yes.
"ATTY. CREER:
"Q Now, in other words, since your two feet were held and Eduardo
Escuadro was waving (sic [moving]) slightly to your left, as you
demonstrated, your two feet became closer to each other, it could
not be spread?
"A I was still struggling at that time to free myself and I do not know
whether my legs were spread out or not.
"Q Did you spread your legs?
"A No.
"Q Since you did not spread your legs and Quianola was on top of you,
did you not bother to pull your legs, kick the one holding it and
pushed Quianola or do any harm to him?
"A No, because I was already frightened considering that there were two
of them and they were armed.[45]
This testimony would indicate that Catalina, considering her struggle to free
herself, understandably failed to notice whether her legs were spread apart
or close together during her ordeal. What she did distinctly recall, however,
was that Escuadro had kept holding both her legs when Quianola took
her. Thus -
Q At that time when he unzipped and your hands were free, did you not
attempt to hold his penis forcibly so that he will refrain from raping
you?
"A I was not able to think of that because of my fear, and besides that
Eduardo Escuadro was holding on to both my legs.
"Q Now, if Eduardo Escuadro was holding on both your two legs how was
Quianola able to place himself on top of you?
"A It was because Eduardo Escuadro had already released my hands and
Quianola was the one holding on to it already, afterwards Eduardo
Escuadro transferred to hold both my legs.[46]
Let it be said once again that, as the Revised Penal Code presently so
stands, there is no such crime as frustrated rape. In People vs. Orita,[47] the
Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim, he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime. Thus, the felony
is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527;
People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886,
April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August
21, 1974, 58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any penetration
of the female organ by the male organ is sufficient. Entry of the labia or lips
of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba, 62 Phil. 559; People vs.
Rabadan, et al., 53 Phil. 694; United States vs. Garcia, 9 Phil. 434) because
not all acts of execution was performed. The offender merely commenced
the commission of a felony directly by overt acts.Taking into account the
nature, elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the frustrated stage
in rape can ever be committed.
"Of course, We are aware of our earlier pronouncement in the case of People
vs. Eriia, 50 Phil. 998 [1927] where We found the offender guilty of frustrated
rape there being no conclusive evidence of penetration of the genital organ
of the offended party. However, it appears that this is a 'stray' decision
inasmuch as it has not been reiterated in Our subsequent
decisions. Likewise, We are aware of Article 335 of the Revised Penal Code,
as amended by Republic Act No. 2632 (dated September 12, 1960) and
Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted
or frustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated rape
is a dead provision. The Eriia case, supra, might have prompted the law-
making body to include the crime of frustrated rape in the amendments
introduced by said laws.[48]
The Court is not unaware that Republic Act No. 7659, amending Article
335 of the Revised Penal Code, has retained the provision penalizing
142
with reclusion perpetua to death an accused who commits homicide by natural effects of the crime, particularly in stripp(ing) the victim of her denim
reason or on the occasion of an attempted or frustrated rape. Until Congress pants and panties and then sending her home in this humiliating and
sees it fit to define the term frustrated rape and thereby penalize it, the Court distressing condition.[54] There is nothing on record that even remotely
will see its continued usage in the statute book as being merely a persistent suggests that accused-appellants so deliberately sought to leave Catalina
lapse in language. with bottoms bare that she might be left alone in shame with only her T-shirt
and brassieres on.
Each appellant is liable for two counts of consummated rape on account
of a clear conspiracy between them shown by their obvious concerted efforts The absence of any aggravating circumstance in the commission of a
to perpetrate, one after the other, the crime. Each of them, therefore, is crime punishable by two (2) indivisible penalties, such as reclusion
responsible not only for the rape committed personally by him but also for the perpetua to death, would justify, even without any mitigating circumstance,
rape committed by the other as well.[49] the imposition of the lesser penalty of reclusion perpetua.
Under Article 335 of the Revised Penal Code as amended by Republic The trial court has ordered appellants to each pay the offended party
Act No. 7659, when rape is committed with the use of a deadly weapon or by civil indemnity in the amount of P50,000.00. Prevailing
two persons, the crime is punishable by reclusion perpetua to death. Even jurisprudence[55] likewise allows the victim to have an award of moral
while the information has failed to allege the use of a deadly weapon in the damages for having evidently undergone "mental, physical and psychological
commission of the rape, appellants can, nonetheless, be held accountable sufferings. The civil liability of appellants, being predicated on delict, is
under that provision since the information has likewise averred that the solidary.[56]
above-named accused, referring to the two appellants, have conspiratorially
committed the crime. WHEREFORE, appellants Agapito Quianola y Escuadro and Eduardo
Escuadro y Floro are each found guilty beyond reasonable doubt of two (2)
Article 14 of the Revised Penal Code,[50] includes among its counts of consummated rape and, accordingly, sentenced to the penalty
enumeration of generic aggravating circumstances the fact that the crime is of reclusion perpetua in each case. Said appellants are ordered to pay, jointly
committed with the aid of armed men or persons who insure or afford and severally, Catalina Carciller the sum of P100,000.00 by way of
impunity. The fact alone, then, that a malefactor has sported a firearm does indemnity ex delictu for the two counts of consummated rape
not, by itself, militate to aggravate the crime. As regards appellant Quianola, plus P60,000.00 moral damages.Costs against appellants.
the aggravating circumstance of his being a member of the Philippine
National Police would have exposed him to the penalty of death [51] under the SO ORDERED.
amendatory provisions of Article 335 by Republic Act No. 7659, had this
circumstance been properly alleged in the information. The description by the
trial court of appellants as being powerfully, built, brawny and mean-looking
as against the short, slender, easily cowed 15-year-old victim would not here
warrant a finding that abuse of superior strength has aggravated the
commission of the crime. The law should be deemed to have already
considered this circumstance in qualifying the crime to its "heinous"
character, rendering, in that context, abuse of superior strength as an
inherent element thereof.Neither may nighttime be considered an
aggravating circumstance in the absence of proof of its having been
deliberately sought out by appellants to facilitate the commission of the
offense.[52]Craft, fraud or disguise[53] is a species of aggravating circumstance
that denotes intellectual trickery or cunning resorted to by an accused to aid
in the execution of his criminal design or to lure the victim into a trap and to
conceal the identity of the accused. The fact that one of the appellants has
pretended to be a member of the New Peoples Army does not necessarily
imply the use of craft, fraud or disguise, in the commission of the
crime. Finally, the Court does not subscribe to the view of the trial court that
accused-appellants have employed means which added ignominy to the

143
THIRD DIVISION
- Wound, hook-shaped 26.5 x 4cms., left thigh middle 3rd antero-medial
aspect.
PEOPLE OF THE PHILIPPINES, G.R. No. 172967 - Chopping wound 15 x 2.5 cm., left leg upper 3rd below knee.
Plaintiff-Appellee, - Chopping wound 4 x 1 cm., right leg middle 3rd anterior aspect.
Present: - Wound semilunar 3 x 0.5 cm., right foot dorum.
- Hacking wound 3 cm. x 0.5 cm. left hand dorsum, near wrist.
YNARES-SANTIAGO, J.,
Chairperson, resulting to Irreversible shock due to arterial hemorrhage due to severe branch of
- versus - AUSTRIA-MARTINEZ, fermoral artery, which caused his death, to the damage and prejudice of his heirs.
CHICO-NAZARIO,
NACHURA,* and CONTRARY To Art. 249, Revised Penal Code as amended by R.A. 7659.
REYES, JJ.

CHRISTOPHER AVILES, Promulgated: Criminal Case No. U-12385

Accused-Appellant.
December 19, 2007 That on or about 7:30 oclock in the evening of June 19, 2002 along Alexander
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Street, Poblacion, Urdaneta City, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a bladed weapon, with
intent to kill and treachery, did then and there, willfully, unlawfully and feloniously
DECISION stab and hit NOVELITO CONTAPAY y CALICA, inflicting upon him a stab wound in the
left knee, the accused having thus commenced by overt act the commission of the
crime of Murder but did not perform all the acts of execution which would have
CHICO-NAZARIO, J.: produced the felony by reason of some cause or accident other than accused[s]
spontaneous desistance, to the damage and prejudice of said Novelito Contapay y
This is an appeal from the Decision[1] of the Court of Appeals affirming with Calica.
modification the Decision[2] of the Regional Trial Court of Urdaneta City, Branch 46,
convicting accused-appellant Christopher Aviles y Molina Alias Topeng (Aviles) of CONTRARY to Article 248 in relation to Article 6 of the Revised Penal Code. [3]
the crimes of murder and slight physical injuries.

Aviles was charged with the crimes of murder and frustrated murder in two
separate Informations, allegedly committed as follows:
Criminal Case No. U-12011
xxxx
That on or about 7:30 oclock in the evening of June 19, 2002 at Alexander St.,
Poblacion, Urdaneta City, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a sharp bladed and pointed knife,
with intent to kill, and treachery, did then and there willfully, unlawfully and
feloniously attack, assault, and stab Danilo Arenas, inflicting upon him the
following:
The evidence for the prosecution shows that on 19 June 2002 at around 7:30 p.m.,
Novelito Contapay (Contapay) was driving his passenger jeep along Alexander
Street, Poblacion, Urdaneta City, at less than ten kilometers per hour due to heavy
traffic in front of Magic Mall. His lone passenger, the deceased Danilo Arenas, was
seated beside him. Arenas suddenly shouted apaya.[4]Contapay turned his head and
saw Christopher Aviles stabbing Arenas. Avilesupper body was already inside the
jeep with one foot on the running board.Contapay halted the jeep and tried to help
Arenas by holding the hand of Aviles, but the latter stabbed Contapay on his left
knee. Contapay pushed Aviles who ran away. Contapay alighted from the jeepney,
but he was not able to chase Avilesbecause of his bleeding left knee. Contapay
noticed that Arenas was already unconscious, and he brought the latter to
the Urdaneta Sacred Heart Hospital.

144
SPO2 Asterio Dismaya, SPO2 Ernesto Contaoi, SPO1 Rodolfo Febreo, PO3 Dennis Upon opening sutured wound:
Torres and a certain SPO2 Cachuela investigated the stabbing incident.SPO2 Wound hook-shaped 26.5 x 4 cm.
Dismaya and his companions went to the Urdaneta Sacred Heart Hospitalbut they - Sutured wound left leg upper 3rd below knee
were not able to interview Danilo Arenas. A nurse informed SPO2 Dismaya that it Upon opening sutured wound:
was Novelito Contapay who brought Arenas to the hospital. SPO2 Dismaya Chopping wound 15 x 2.5 cm.
interviewed Contapay who was still in the premises.
- Sutured wound right leg middle 3rd anterior aspect.
Thereafter, the policemen went to the scene of the incident. SPO2 Dismaya was Upon opening sutured wound:
able to talk to Rufina Calvero, a balut vendor, who told him that she - Chopping wound 4 x 1 cm.
noticed Aviles and the latters half-brother, George Cresencia (Cresencia), pass by
her going southwards. Rufina Calvero also told SPO2 Dismaya that her husband had - Sutured wound right foot, dorsum.
a drinking spree with Aviles and Cresencia. Upon opening sutured wound
- Sutured wound semilunar 3 x 0.5 cm.
SPO2 Dismaya was also able to talk to Patricio Oliveros who informed him
that Aviles created trouble at the parking lot for tricycles by chasing other tricycle - Sutured wound left hand dorsum, near wrist.
drivers, but was pacified by Cresencia. Upon opening sutured wound:
- Hacking wound 3 cm. x 0.5 cm.
Meanwhile, Contapay, realizing the lack of doctors in Sacred Heart Hospital,
proceeded to the Villasis Polymedic Hospital and Trauma Center to have his left SIGNIFICANT INTERNAL FINDINGS:
knee treated. Contapay stayed in the hospital until the following day, incurring
medical and hospital expenses.[5] Arenas, however, died at 2:00 in the morning Severed branch of femoral artery.
of 20 June 2002. The Certificate of Death stated that the immediate cause of death
was cardio-respiratory arrest and the antecedent cause was hemorrhagic shock due CAUSE OF DEATH:
to stab wound on the medial side of the thigh.
Irreversible shock due to arterial hemorrhage due to severed branch of femoral
Also on 20 June 2002, SPO2 Dismaya and other policemen went to the residence artery.
of Aviles in Jungle Town, San Vicente, Urdaneta City, but did not find him
there. Aviles mother accompanied the policemen to the house of Aviles father-in-
law, where they finally saw Christopher Aviles. They invited Aviles to the police During the trial, the father of Danilo Arenas, Victorio, testified that he and his wife,
station in connection with the stabbing incident. Aviles denied participation in the Lagremas, spent P52,524.00 for the treatment of Danilo Arenas at
stabbing incident and claimed that it was his half-brother, Cresencia, who stabbed the Urdaneta Sacred Heart Hospital, P50,000.00 during the wake, and
Arenas. another P38,000.00 paid to the Enriquez Funeral Home. These amounts were
supported by official receipts.
Upon the request of Police Superintendent Jessie Lorenzo Cardona, Chief of Police
of the Urdaneta City Police Station, City Health Physician of Urdaneta City, Dr. The widow of Danilo Arenas, Sophia, testified that her late husband was a
Ramon B. Gonzales, Jr. conducted an autopsy on the body of Arenas. The Autopsy businessman who used to earn around P9,000.00 a month. Besides Sophia, Danilo
Report[6] reads: Arenas is survived by his three children: Mark Joseph (10 years old), Mary Jane (9
years old), and Jeremias (6 years old).
SIGNIFICANT EXTERNAL FINDINGS:
Accused-appellant Christopher Aviles, who testified that he was a shoe repairer and
- Plaster cast on left lower extremity. fish vendor, claimed that at around 5:00 p.m. on 19 June 2002, he, George
Upon removing cast: Cresencia, Romeo Aquino, Maria Aquino and several other persons were drinking in
- Sutured wound left thigh middle 3rd antero-medial aspect. front of the Magic Mall in Urdaneta City. He allegedly left the group to accompany

145
someone to the municipal hall, after which, he returned to the place where the
group was drinking. He then told Cresencia that he was going home, but the latter
asked him to stay and continue drinking with them. After 30 minutes, he finally left
in order to go home. While he was walking towards the public market near Rocca
Theater, he saw Cresencia running towards him. Cresencia, who had blood stains on
his t-shirt, told him that he (Cresencia) stabbed someone. Avilesrevealed that he did
not ask Cresencia who the victim was and proceeded on his way home. He did not
tell his mother or his wife that Cresencia stabbed someone.The following day, on 20
June 2002, at 6:00 a.m., he was arrested and brought to the municipal hall.
Renton and Criselda Aviles, who are Christopher Aviles brother and sister-in-law,
testified that on 19 June 2002, Cresencia arrived drunk in their house at around 9
p.m., with blood stains on his shirt. Cresencia allegedly told them that he was
involved in a fight and that he might have stabbed someone. Cresencia spent the
night at their house and left the following morning.
On 21 July 2003, the trial court rendered a Joint Decision convicting Christopher
Aviles of the crimes of murder and slight physical injuries, thus:
WHEREFORE, premises considered, the court finds accused CHRISTOPHER AVILES Y
MOLINA ALIAS TOPENG
1. CRIMINAL CASE NO. U-12011:
GUILTY beyond reasonable doubt of the crime of MURDER and, there being no
mitigating or aggravating circumstance, he is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA; and is hereby ordered to indemnify the heirs of the victim
of Danilo Arenas in the amount of FIFTY THOUSAND PESOS (P50,000.00), to pay
funeral expenses of Thirty Eight Thousand Pesos (P38,000.00), to pay medical
expenses of Fifty Two Thousand Five Hundred Twenty Four Pesos (P52,524.00), to
pay P50,000.00 by way of moral and exemplary damages, all without subsidiary
imprisonment;
2. CRIMINAL CASE NO. U-12385:
GUILTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL INJURIES and is
hereby sentenced to suffer imprisonment of thirty (30) days of Arresto Menor, and
is hereby ordered to pay medical expenses of Six Thousand Eight Hundred Ninety
Eight Pesos (P6,898.00);
and to pay the costs.
The accused shall be credited in full with the period of his preventive imprisonment
in the service of his sentence.[7]
Aviles appealed to this Court. Conformably with this Courts ruling in People v.
Mateo,[8] we resolved[9] to transfer the appeal to the Court of Appeals.
On 23 December 2005, the Court of Appeals rendered its Decision affirming with
modification the trial courts Decision, thus:
WHEREFORE, the Joint Decision dated July 21, 2003 is AFFIRMED, with the
MODIFICATION that accused-appellant Christopher Aviles y Molina is ordered to
pay the heirs of Danilo Arenas the amounts of P50,000.00 as moral damages
and P25,000.00 as exemplary damages.[10]
Aviles now comes before us, assigning the following errors to the Court of Appeals:
I.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.
II.
THE TRIAL COURT GRAVELY ERRED IN ITS FINDING THAT THE QUALIFYING
CIRCUMSTANCE OF TREACHERY ATTENDED THE COMMISSION OF THE CRIMES
CHARGED.[11]
Christopher Aviles argues that the identification made by the lone eyewitness,
Contapay, is doubtful. Contapay testified that when he heard the deceased Arenas
shout Apaya, he turned his head and saw Aviles stabbing the deceased several
times. He tried to hold Aviles but was, however, stabbed on the knee, prompting
him to kick Aviles out of the jeepney. According to Aviles, when confronted with a
situation like this, it is more consistent with human nature that a persons attention
would be caught up in the on-going struggle and confusion, rather than in trying to
recognize the attacker. Aviles points out that he and Contapay did not know each
other prior to the stabbing incident and, thus, the only basis of Contapays memory
of Aviles appearance was the span of time when the incident transpired.
146
Aviles further calls our attention to the investigation conducted by prosecution
witness SPO2 Dismaya, who had interviewed balut vendor Rufina Calvero, tricycle
driver Romeo Aquino, and Aviles half-brother Cresencia. Avilesasserts that these
three people were never presented in court to affirm their statements.
We do not find Aviles assertions to be sufficient to reverse the outcome of the case.
Aviles may be correct that when the prosecution has at its disposal disinterested
witnesses to the alleged crime but fails to produce them at the trial, such failure,
although not fatal, seriously weakens the case against the accused. [12]However, that
is not the case here. The statements of Rufina Calvero, Romeo Aquino and George
Cresencia, while instrumental in the identification of Christopher Aviles for the
purpose of his arrest, were neither necessary nor beneficial for the identification
of Aviles in trial.
SPO2 Dismayas testimony centered on his investigation of the crime which led to
the arrest of Aviles. This investigation started with SPO2 Dismayas interview of
Contapay who knew neither the name nor the residence of Aviles. SPO2 Dismaya
and his companions thus proceeded to the scene of the crime, which led to their
discovery of witnesses who indicated Aviles presence therein
and possible participation in the stabbing incident. This eventually led to the arrest
of Aviles who was identified by Contapay as the person who stabbed him and
Arenas.
During the trial, when Aviles was already in custody, testimonies merely pointing to
a possibility that Aviles participated in the stabbing incident was supplanted by the
eyewitness account of Contapay that Aviles himself had performed the
stabbing. The trial court found Contapays testimony to be credible.It is settled that
the appellate courts will generally not disturb the findings of the trial court
considering that the latter is in a better position to determine the same, having
heard the witnesses themselves and observed their deportment and manner of
testifying during the trial, unless certain facts of value have been plainly overlooked,
which if considered, might affect the result of the case.
It must also be considered that, as elucidated by the statements of Avileshimself, he
and Contapay had never met before the stabbing incident. Contapay cannot
therefore, could not have been impelled by ill will or evil intent in testifying
against Aviles whom he did not know prior to the incident.
Neither are we persuaded by Aviles argument that it is more consistent with human
nature that a persons attention would be caught up in the ongoing struggle, rather
than in trying to recognize the attacker. Different people react differently to a given
situation, and there is no standard form of behavioral response when one is
confronted with a strange, startling or frightful experience. Witnessing a crime is
one novel experience which elicits different reactions from witnesses for which no
clear-cut standard of behavior can be drawn. This is especially true if the assailant is
physically near the witness.[13] In People v. Aquino,[14] we even held that:
There is no standard rule by which witnesses to a crime may react. Often, the face
and body movements of the assailant create an impression which cannot be easily
erased from the memory of witnesses x x x.
This finding of credibility on the part of Contapay likewise obliges us to affirm the
ruling of the trial court and the Court of Appeals finding Aviles guilty of slight
physical injuries. Contapays testimony was the evidence presented to prove not
only the killing of Arenas, but likewise the stabbing of Contapay himself who had
tried to help Arenas.
We also agree with the trial court that the crime proven to have been committed
by Aviles in stabbing Contapay is only slight physical injuries. While the prosecution
sufficiently established that Aviles stabbed Contapay, it failed to prove intent to kill,
which is an element of both frustrated and attempted homicide.On the contrary,
the evidence appears to show that Aviles stabbed Contapay on the knee only for
the purpose of preventing the latter from further helping Arenas.Since there was no
proof either as to the extent of the injury or the period of incapacity for labor or of
the required medical attendance, Aviles can only be convicted of slight physical
injuries.
Anent the second assigned error, Aviles claims that the trial court erred in its finding
that the qualifying circumstance of treachery attended the commission of the
crime, as Contapay did not testify as to how the attack on Arenas was initiated.
There is treachery when the following requisites are present: (1) the employment of
means, methods, or manner of execution to ensure the safety of the malefactor
from defensive or retaliatory action on the part of the victim and (2) the deliberate
or conscious adoption of such means, method or manner of execution. [15]
The Court of Appeals ruled that the fact that Arenas shouted Apaya (perhaps a
shortened form of apay aya, which is more accurately translated in Filipino as bakit
ba) showed that he was probably surprised to see Aviles trying to get inside the
jeepney which was moving slowly because of heavy traffic. The testimony of
Contapay that after hearing Arenas shout Apaya, he saw Aviles already stabbing
Arenas, showed that the attack was sudden and unexpected.
147
We agree with Aviles on this score. Although Contapay testified that he turned
around immediately when the deceased shouted Apaya, he did not testify as to
how the attack was initiated. Also, considering that he was driving the jeepney
when Arenas was attacked, he could not even have known how the attack was
initiated.
For treachery to be appreciated, it must be present at the inception of the attack. If
the attack is continuous and treachery was present only at a subsequent stage and
not at the inception of the attack, it cannot be considered. [16] Rather than being an
expression of surprise at the presence of Aviles as held by the Court of Appeals, the
shout Apaya or Apay aya, when translated as Bakit ba, connotes confusion as
to why the person to whom it is spoken is acting the way he is acting.This implies
the lapse of several moments between the commencement of the attack and
Arenas shouting.
Qualifying circumstances must be proven beyond reasonable doubt as the crime
itself.[17] It cannot be considered on the strength of evidence which merely tends to
show that the victim was probably surprised to see the assailant trying to get inside
the jeepney. As discussed above, Arenas shout can be interpreted in different
ways. In fact, prosecution witness Dr. Ramon Gonzales even testified that it was
possible that Aviles and Arenas were having a fight:
Atty. Florendo: You also found a wound on the left wrist of the cadaver, Doctor?
A: Yes sir.
Q: Would you consider it as a defensive wound, Doctor?
A: Yes sir.
Q: When you said it was a defensive wound, it is possible that the victim and the
assailant was having a fight?
A: Yes sir.[18]
Neither does the fact that Arenas was in between Contapay and Avilesconclusively
prove the presence of treachery. While this situation proved fatal to Arenas who
had nowhere to run, there was no evidence that this situation was deliberately and
consciously adopted to ensure safety of the malefactor from defensive or
retaliatory action on the part of the victim. As we have similarly held in People v.
Latag,[19]
Furthermore, no other circumstance attendant to the shooting supports the
allegation that appellant carefully and deliberately planned the killing in a manner
that would ensure his safety and success. There were no indications that he had
deliberately chosen the place, the time or the method of killing. In addition, there
was no showing that the meeting between him and the victim had been
planned. The fact that the former was seen by Atienza behind some shrubs after a
gunshot had rung out does not, by itself, compel a finding of treachery.Such a
finding must be based on some positive proof, not merely on an inference drawn
more or less logically from a hypothetical fact. Apparent from the assailed Decision
of the trial court is that it simply surmised that treachery had attended the killing.
As no qualifying circumstance attended the killing, Christopher Aviles can only be
convicted of homicide. Homicide is punishable by reclusion temporal.[20]There being
no mitigating or aggravating circumstances proven in the case at bar, the penalty
should be applied in its medium period of 14 years, 8 months and 1 day to 17 years
and 4 months. Applying the Indeterminate Sentence Law, the maximum penalty will
be selected from the above range, with the minimum penalty being selected from
the range of the penalty one degree lower than reclusion temporal, which is prision
mayor (six years and one day to 12 years). We find the indeterminate sentence of
10 years and one day of prision mayor, as minimum to 14 years and one day
of reclusion temporal, as maximum to be sufficient.
Finally, the absence of qualifying circumstances also warrants the deletion of the
exemplary damages.
WHEREFORE, the Decision of the Court of Appeals is MODIFIED. The Court finds
accused-appellant Christopher Aviles y Molina guilty beyond reasonable doubt of
the crime of HOMICIDE, and is hereby sentenced to suffer an indeterminate penalty
ranging from 10 years and one day of prision temporal as minimum to 14 years and
one day of reclusion temporal as maximum. The penalty imposed by the courts a
quo for the crime of slight physical injuries as well as all civil indemnities imposed by
the courts a quo are AFFIRMED, with the exception of the P25,000.00 imposed on
accused-appellant Aviles by way of exemplary damages, which is hereby DELETED.
SO ORDERED
148
FIRST DIVISION confederating and mutually helping one another, did then and there, willfully,
unlawfully and feloniously assault, attack and shot from ambush WINNER AGBULOS
PEOPLE OF THE PHILIPPINES, G.R. No. 173479 and EDDIE QUINDASAN, consequently inflicting thereby multiple gunshot wounds
Plaintiff-Appellee, Present: on the different parts of their bodies, killing Winner Agbulos on the spot and
causing the death of Eddie Quindasan shortly thereafter, then and there willfully,
PUNO, C.J., Chairperson, unlawfully and feloniously, with intent to kill, shot William Belmes, said accused
*
SANDOVAL-GUTIERREZ, having commenced the execution of Murder by overt acts but were unable to
CORONA, perform all the acts of execution, which would have produced the crime of Murder
- versus - AZCUNA, and as a consequence thereof, due to alertness of victim William Belmes to roll and
GARCIA, JJ. poor marksmanship of the accused thus prevented his death, then and there
willfully and unlawfully and feloniously, with the intent of gain, take, steal and carry
Promulgated: away the money of Winner Agbulos in the amount of Twelve Thousand Pesos
(P12,000.00), Philippine currency..
JUAN CABBAB, JR., July 12, 2007
Accused-Appellant. ALL CONTRARY TO LAW with the aggravating circumstance of: (1) uninhabited
x-----------------------------------------------------------------------------x place.
DECISION

GARCIA, J.:
Before the Court on automatic review is the decision [1] dated February 22, 2006 of
the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00968 which affirmed, with
modification, an earlier decision of the Regional Trial Court (RTC) of Bangued, Abra,
Branch 2, in Criminal Case No. 687, finding appellant Juan Cabbab, Jr., guilty beyond
reasonable doubt of the crime of Robbery with Homicide and Attempted Murder
and sentencing him to suffer the penalty of reclusion perpetua.
Pursuant to our pronouncement in People v. Mateo[2] which modified the provisions
of the Rules of Court insofar as they provide for direct appeals from the RTC to this
Court in cases where the penalty imposed by the trial court is death, reclusion
perpetua or life imprisonment, this case was earlier[3] referred to the CA, whereat it
was docketed as CA-G.R. CR-H.C. No. 01978, for appropriate action and disposition.
On arraignment, appellant Juan Cabbab, Jr. and accused Segundino Calpito
separately entered their pleas of Not Guilty to the crimes charged. Thereafter, trial
on the merits ensued, in the course of which the prosecution presented the oral
testimonies of M/Sgt. Godofredo Tubadeza, a police investigator at Camp Villamor,
Bangued, Abra; PO William Belmes, a member of the Integrated National Police at
the Villaviciosa Police Station; Vidal Agbulos, father of the victim Winner Agbulos;
Dra. Leona Garcia-Beroa, medico-legal officer who conducted an autopsy on the
body of Winner Agbulos; and Dr. Godofreco Gasa, a physician at
the Abra Provincial Hospital.
For its part, the defense presented the appellant himself; accused Segundino
Calpito; and George de Lara, a Forensic Chemist of the National Bureau of
Investigation (NBI).
The Evidence

The Case
In the court of origin, appellant Juan Cabbab, Jr., along with his cousin-in-law
Segundino Calpito, was charged with the crimes of Double Murder and Attempted
Murder with Robbery in an Information[4] alleging, as follows:
That on or about April 22, 1988, in Sitio Kayawkaw, Barangay Kimmalasag,
Municipality of San Isidro, Province of Abra, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused with the intent to kill, treachery
and evident premeditation, while armed with a firearm (not-recover), conspiring,
The Peoples version of the incident is succinctly summarized by the Office of the
Solicitor General (OSG) in its Appellees Brief,[5] to wit:
In the morning of 22 April 1988, father and son Vidal Agbulos and Winner Agbulos,
together with Eddie Quindasan, Felipe Abad and Police Officer (PO) William Belmes,
went to Barangay Kimmalasag, San Isidro, Abra to attend a fiesta celebration. Upon
arrival in the area, they found out that the fiesta celebration was already over, thus,
they decided to go home in Villaviciosa, Abra. Since it was already lunchtime, the
group took their lunch at Sitio Turod, located in the same area of Barangay
Kimmalasag. After taking their lunch and on their way home, they were met by

149
accused-appellant Juan Cabbab, Jr. and Segundino Calpito who invited them to play
pepito, a local version of the game of russian poker.
Only Winner Agbulos and Eddie Quindasan played pepito with the group of
accused-appellant. Winner Agbulos played the dealer/banker in the game while
accused-appellant and Segundino Calpito acted as players therein. Around 3:00
oclock p.m., PO William Belmes told Winner Agbulos and Eddie Quindasan that they
should be going home after three (3) more deals. About 3:30 p.m., Winner Agbuloss
group wrapped-up the game and were set for home together with his
group. Winner Agbulos won the game.
While walking on their way home from Sitio Turod, PO William Belmes, who was
behind Winner Agbulos and Eddie Quindasan picking-up guava fruits from a tree,
saw accused-appellant, accused Segundino Calpito and a companion running up a
hill. Suddenly, he heard gunshots and saw Winner Agbulos and Eddie Quindasan,
who were then walking ahead of the group, hit by the gunfire.
By instant, PO William Belmes dove into a canal to save himself from the continuous
gunfire of accused-appellant. PO William Belmes ran towards Vidal Agbulos and
Felipe Abad, who were walking behind the group, and informed the two that
Winner Agbulos and Eddie Quindasan were ambushed by accused-appellant and
Segundino Calpito. The three (3) proceeded to the crime scene where they saw the
dead body of Winner Agbulos together with Eddie Quindasan whom they mistook
for dead. The three sought help from the police authorities of Pilar, Abra and
returned to the scene of the crime where they found Eddie Quindasan who was still
alive and who narrated that it was Juan Cabbab, Jr. and Segundino Calpito who
ambused them and took the money, estimated at P12,000.00, of Winner
Agbulos which he won in the card game. Eddie Quindasan was brought to
the Abra Provincial Hospital but died the following day.
Postmortem examination of Winner Agbulos showed that the cause of his death
was cardio respiratory arrest secondary to hemorrhage due to multiple gunshot
wounds. On the other hand, Eddie Quindasans cause of death was cardio
respiratory arrest secondary to hypovolemic shock due to multiple gunshot wounds.
For the defense, appellant himself took the witness stand claiming that in the
morning of April 22, 1988, he went to Palao, Baddek, Bangued, Abra to visit his
friends Romeo, Demetrio and Restituto, all surnamed Borreta. He stayed there
almost the entire day and left only at around 5:00 p.m. He arrived home in
Kimmalasag, San Isidro, Abra at around 5:30 p.m. He declared that his co-accused
Calpito was not with him that day. He likewise averred that he did not know
prosecution witnesses PO William Belmes and Vidal Agbulos nor did he know of any
motive for them to testify against him.
Appellants co-accused Calpito denied having committed the crimes charged. He
testified that at around 8:30 a.m. of April 22, 1988, he went fishing at
Kimmalasag, San Isidro, Abra until 4:00 a.m. of the following day.
George de Lara, Forensic Chemist of the NBI, testified that he conducted an
examination on the paraffin cast taken from appellant to determine the presence of
gunpowder residue or nitrates on appellants hands. The results of the said
examination showed that appellant was negative of nitrates. He opined that certain
factors may affect the result of the test such as perspiration, wind velocity, humidity
or the type of gun used. He also theorized that a paraffin test would yield a negative
result if fertilizers or cosmetics are applied to the hands before the cast is taken.
The Trial Courts Decision
In a decision[6] dated August 26, 1997, the trial court acquitted Segundino Calpito
but found appellant Juan Cabbab, Jr. guilty of two crimes, i.e. (1) robbery with
double homicide and (2) attempted murder. Dispositively, the decision reads:
WHEREFORE, the court finds accused Juan Cabbab, Jr. guilty beyond reasonable
doubt of double murder with robbery or better put, robbery with double homicide
and attempted murder as defined in Art. 248 of the Revised Penal Code in relation
to Art. 294 of the same Code or robbery with double homicide defined and
penalized under Art. 248 in relation to Art. 6 of the Same Code with aggravating
circumstance of uninhabited place with no mitigating circumstances and sentences
him with the penalty of reclusion perpetua for each of the killing of Winner Agbulos
and for robbing the said victim after killing him and for the killing of Eddie
Quindasan. The court likewise finds the accused Juan Cabbab, Jr. guilty beyond
reasonable doubt of the attempted murder defined and penalized in Art. 48 in
relation to Art. 6 of the Revised Penal Code. These offenses attended by the
aggravating circumstance of uninhabited place with no mitigating circumstances
and sentence him to suffer an indeterminate penalty of FOUR (4) MONTHS and ONE
(1) DAY of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS
of prision correccional as maximum.
He is hereby ordered to pay the heirs of the victims P50,000.00 for each of them
plus P20,000.00 also for each of them as actual expenses and finally, the amount of
P100,000.00 also for each of them as moral and exemplary damages and to pay the
costs of this suit.
Accused Segundino Calpito is acquitted for insufficiency of evidence.
150
SO ORDERED. William Belmes on Re-direct Examination

The records of the case were then transmitted to this Court on automatic review. As
stated at the onset hereof, the Court, in its Resolution [7] of January 17, 2006 and
pursuant to its ruling in People v. Mateo,[8] referred the case and its records to the
CA for appropriate action and disposition, whereat it was docketed as CA-G.R. CR-
H.C. No. 00968.
In a decision dated February 22, 2006, the CA modified the trial courts decision and
found appellant guilty of the special complex crime of Robbery with Homicide and
imposed upon him the penalty of reclusion perpetua. The CA also affirmed
appellants conviction, as well as the penalty imposed, for the separate crime of
attempted murder.
From the CA, the case was then elevated to this Court for automatic review. In its
Resolution[9] of September 20, 2006, the Court resolved to require the parties to
submit their respective supplemental briefs.
In a Manifestation dated November 16, 2006, the OSG, in behalf of appellee People,
informed the Court that it is no longer filing a supplemental brief and was merely
adopting its appellees brief before the CA as its supplemental brief.
FISCAL FLORES:
Q. Mr. Witness, when you gave your statement on April 30, 1988, exactly eight (8)
days after the incident when the incident wherein you were investigated upon still
very very fresh in your mind (sic). Now, in your statement which you gave to the
investigator, Pat. Tubadeza, you stated that you saw the persons shot at Winner
Agbulos and Eddie Quindasan and after the two (2) had fell down then you also
likewise saw them shot at you at the time you were rolling to the ground. Do you
affirm and confirm this statement of yours which you subscribed before Fiscal
Ricarte Valera?
ATTY. YANURIA:
Your Honor, it is misleading, we object, in so far as the shooting of Eddie Quindasan
and Winner Agbulos was not seen. He only saw the persons who were firing at him
namely: Juan Cabbab and Segundino Calpito.
COURT:

Appellant, on the other hand, filed on December 18, 2006 his supplemental brief on In his testimony before the court he testified before the court that he saw Juan
the lone assigned error, that: Cabbab and Segundino Calpito shot at Eddie Quindasan and Winner
Agbulos. Reform the question.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REJECTING THE DEFENSE FISCAL FLORES:
OF ALIBI INTERPOSED BY THE ACCUSED-APPELLANT, DESPITE THE FACT THAT THE
VERSION IS MORE CREDIBLE AND SUPPORTED BY EVIDENCE. Q. However, you saw these two (2) accused, Juan Cabbab and Segundino Calpito
shoot at you?
A. Yes, sir.
Insisting that the prosecution failed to prove his guilt beyond reasonable doubt,
appellant pleads for acquittal. He avers that the witnesses for the prosecution failed Q. Will you tell the court if how far were these two (2) accused when they were
to positively identify him as the perpetrator of the crime as they did not actually see firing at you?
him shoot the victims. Appellant also relies on the results of the paraffin test A. Eight (8) meters, sir.
showing that he was negative of gunpowder nitrates.
Q. And therefore what time is it when they were firing at you?
The appeal must fail. A. If Im not mistaken it was 4:00 oclock in the afternoon.[10]

Appellants contention that the witnesses for the prosecution failed to identify him xxx xxx xxx
as the perpetrator of the crime is belied by the testimony of PO William Belmes,
who was with the victims when the incident happened. We quote from the William Belmes on cross-examination
transcripts of the stenographic notes:
ATTY. YANURIA:

151
Q. In other words, it was you being shot out by Segundino Calpito and Juan Cabbab
but you did not see them shoot at Winner Agbulos and Eddie Quindasan?
A. I saw Juan Cabbab and Segundino fire at Winner Agbulos and Eddie Quindasan
(the witness using the word banat) and when they already fell down, they
continued firing attempt and in my case I rolled and they also fired at me. [11]
The above testimony adequately showed that Belmes was able to look at and see
appellant at the time he perpetrated the crime. To our mind, Belmes could not have
made a mistake with respect to appellants identity, what with the fact that just a
few hours before the incident, it was even appellant himself who invited Belmes
and his group to play poker. For sure, Belmes had a face-to-face encounter with
appellant before the assault and thus would be able to unmistakably recognize him
especially because at the time of the attack, Belmes was just eight (8) meters away
from appellant and conditions of visibility were very good at the time of the
incident as it was only around 4:00 in the afternoon. Jurisprudence recognizes that
it is the most natural reaction of victims of violence to strive to see the appearance
of the perpetrators of the crime and to observe the manner in which the crime was
committed.[12]
Belmes testimony was corroborated by that of Vidal Agbulos who was also with the
group when the robbery and shooting took place. Again, we quote from the
transcripts of stenographic notes:
Vidal Agbulos on direct examination
FISCAL FLORES:
Q. What did you do next when Felipe Abad informed you again that your son was
already killed and Eddie Quindasan was injured?
A. Even if he told me about that I just went ahead.
Q. What happened next when he told you that?
A. When I went ahead I saw Juan Cabbab took the wallet from my son.
COURT:
Q. At that time, Winner Agbulos was already prostrate on the ground?
A. Yes, sir, my son was lying on the ground facing down.[13]
Clearly, then, Vidal Agbulos positively identified appellant as the person who
robbed his son, Winner, of his winnings. Just like Belmes, Agbulos could also not
have been mistaken as to appellants identity considering that it was appellant who
personally approached Agbulos group and invited them to play poker just a few
hours prior to the commission of the crime. Further, Agbulos testified that he was
familiar with appellant as he would often see him in a cockpit in San Isidro, Abra.
To be sure, the trial court which had the unique opportunity to observe at first hand
the demeanor of witnesses Belmes and Agbulos and asses whether they are telling
the truth or not, gave full faith and credence to their testimonies. Finding no facts
and circumstances of weight and substance that would otherwise warrant a
different conclusion, the Court accords the highest respect to the trial courts
evaluation of the credibility of these witnesses.
Appellant likewise capitalizes on the results of the paraffin test showing that both
his hands yielded no trace of gunpowder residue. Unfortunately for appellant, the
results of the paraffin test would not exculpate him. The negative findings of said
test do not conclusively show that a person did not discharge a firearm at the time
the crime was committed. This Court has observed that it is quite possible for a
person to discharge a firearm and yet exhibit no trace of nitrates: when, e.g., the
assailant fired the weapon while wearing gloves or where the assailant thoroughly
washes his hands thereafter.[14] As George de Lara of the NBI stated in his testimony
before the trial court, if a person applies cosmetics on his hands before the cast is
taken, gunpowder residue would not be found in that persons hands. He also
testified that certain factors could contribute to the negative result of a paraffin test
such as perspiration, humidity or the type of firearm used. In fine, a finding that the
paraffin test on the person of the appellant yielded negative results is not
conclusive evidence to show that he indeed had not fired a gun.
Too, appellant has not shown any evidence of improper motive on the part of
prosecution witnesses Belmes and Agbulos that would have driven them to falsely
testify against him. In fact, appellant himself declared that he did not know of any
reason why Belmes and Agbulos would implicate him in the crime. Where there is
nothing to show that the witnesses for the prosecution were actuated by improper
motive, their positive and categorical declarations on the witness stand under the
solemnity of an oath deserve full faith and credence.[15]
Interjected as a defense is alibi, appellant claiming that he went to Palao, Baddek,
Bangued, Abra to visit his friends in the morning of April 22, 1988 and returned
home only at around 5:30 p.m. For alibi to prosper, however, the hornbook rule
requires a showing that the accused was at another place at the time of the
perpetration of the offense and that it was physically impossible for him to be at
152
the scene of the crime at the time of its commission.[16] Where there is even the
least chance for the accused to be present at the crime scene, the defense of alibi
will not hold water.[17]
Here, the evidence shows that Palao, Baddek, Bangued, Abra where appellant
allegedly visited his friends was only 30 minutes drive from Barangay
Kimmalasag, San Isidro, Abra where the crime was committed. In short, appellant
failed to establish by clear and convincing evidence the physical impossibility of his
presence at the scene of the crime on the date and time of its commission.
The weakness of appellants alibi is heavily underscored by the fact that appellant
was positively identified by witnesses Belmes and Agbulos who were with the
victims at the time of the incident. For sure, appellants positive identification as the
perpetrator of the crime renders his defense of alibi unworthy of credit. [18]
The crime committed by appellant was correctly characterized by the appellate
court as Robbery with Homicide under Article 294, paragraph 1 of the Revised Penal
Code (RPC) which reads:
Art. 294. Robbery with violence against or intimidation of persons Penalties. Any
person guilty of robbery with the use of violence against any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been committed, or when the robbery
shall have been accompanied by rape or intentional mutilation or arson.
To warrant conviction for the crime of Robbery with Homicide, the prosecution is
burdened to prove the confluence of the following elements:
(1) the taking of personal property is committed with violence or intimidation
against persons;
(2) the property taken belongs to another;
(3) the taking is characterized by intent to gain or animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof, homicide is
committed.[19]
In Robbery with Homicide, so long as the intention of the felon is to rob, the killing
may occur before, during or after the robbery. It is immaterial that death would
supervene by mere accident, or that the victim of homicide is other than the victim
of robbery, or that two or more persons are killed. Once a homicide is committed
by reason or on the occasion of the robbery, the felony committed is the special
complex crime of Robbery with Homicide.[20]
Here, the prosecution adduced proof beyond reasonable doubt that appellant,
having lost to Winner Agbulos in the game of poker, intended to divest Agbulos of
his winnings amounting to P20,000.00. In pursuit of his plan to rob Agbulos of his
winnings, appellant shot and killed him as well as his companion, Eddie Quindasan.
The prescribed penalty for Robbery with Homicide under Article 294 of the RPC, as
amended by R.A. No. 7659 (Death Penalty Law), is reclusion perpetua to death. In
the application of a penalty composed of two indivisible penalties, like that for
Robbery with Homicide, Article 63 of the RPC provides that when in the commission
of the deed there is present only one aggravating circumstance, the greater penalty
shall be applied. In this case, the aggravating circumstance of treachery attended
the commission of the crime, as appellants attack on the victims who were then
unsuspectingly walking on their way home was sudden and done without any
provocation, thus giving them no real chance to defend themselves.
However, considering that the crime was committed in 1988 or prior to the
effectivity of R.A. No. 7659,[21] the trial court and the CA correctly imposed upon
appellant the lesser penalty of reclusion perpetua.
The Court feels, however, that the two courts below erred in convicting appellant of
the separate crime of attempted murder for the shooting of PO William Belmes.
Attempted homicide or attempted murder committed during or on the occasion of
the robbery, as in this case, is absorbed in the crime of Robbery with Homicide
which is a special complex crime that remains fundamentally the same regardless of
the number of homicides or injuries committed in connection with the robbery. [22]
We now come to the award of damages.
Conformably with existing jurisprudence, the heirs of Winner Agbulos and Eddie
Quindasan are each entitled to civil indemnity in the amount of P50,000.00,[23] to
moral damages in the amount of P50,000.00,[24] and to exemplary damages in the
sum of P25,000.00.[25]
With respect to actual damages, Winners father, Vidal Agbulos, testified that he
spent a total of P50,000.00 as burial expenses but he failed to present receipts
therefor. In People v. Abrazaldo,[26] we laid down the doctrine that where the
amount of actual damages for funeral expenses cannot be determined because of
the absence of receipts to prove them, temperate damages may be awarded in the
amount of P25,000.00. Thus, in lieu of actual damages, temperate damages in the
amount of P25,000.00 must be awarded to the heirs of Winner because although
the exact amount was not proved with certainty, it was reasonable to expect that
153
they incurred expenses for the coffin and burial of the victim. We, however, cannot THIRD DIVISION
grant the same to the heirs of Eddie Quindasan for their failure to testify on the
matter. Finally, appellant is obliged to return to the heirs of Winner Agbulos the PEOPLE OF THE PHILIPPINES, G.R. No. 183619
amount of P20,000.00 he had taken from Winner. Appellee,
WHEREFORE, the decision dated February 22, 2006 of the CA in CA-G.R. CR-H.C. No. Present:
00968 is hereby AFFIRMED with the following MODIFICATIONS:
1. Appellant Juan Cabbab, Jr. is found GUILTY beyond reasonable doubt of CARPIO, J.,
Robbery with Homicide and sentenced to suffer the penalty of reclusion perpetua. Chairperson,
2. Appellant is hereby ordered to return to the heirs of Winner Agbulos the - versus - CHICO-NAZARIO,
amount of P20,000.00 representing the amount stolen from him. He is likewise VELASCO, JR.,
ordered to indemnify the heirs of Winner Agbulos the following: (a) P50,000.00 as NACHURA, and
civil indemnity; (b) P50,000.00 as moral damages, (c) P25,000.00 as exemplary PERALTA, JJ.
damages; and (c) P25,000.00 as temperate damages.
3. Appellant is further ordered to pay the heirs of Eddie Quindasan P50,000.00 Promulgated:
as civil indemnity, another P50,000.00 as moral damages, and P25,000.00 as SALVINO SUMINGWA,
exemplary damages. Appellant. October 13, 2009
4. For reasons herein stated, appellant is ACQUITTED of the separate crime of
attempted murder against the person of PO William Belmes. x------------------------------------------------------------------------------------x

Costs de oficio.
DECISION
SO ORDERED.
NACHURA, J.:

On appeal before us is the January 31, 2008 Court of Appeals (CA) Decision [1] in CA-
G.R. CR No. 30045 affirming with modification the February 14, 2006 Regional Trial
Court[2] (RTC) Consolidated Judgment[3] against appellant Salvino Sumingwa in
Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness; 1646, 1649 and 1654
for Rape; 1651 for Attempted Rape; and 1655 for Unjust Vexation. Assailed also is
the June 5, 2008 CA Resolution[4] denying appellants motion for reconsideration.

In twelve Informations, the prosecution charged appellant with two (2) counts of
Acts of Lasciviousness,[5] four (4) counts of Rape,[6] three (3) counts of Unjust
Vexation,[7] one (1) count of Other Light Threats,[8] one (1) count of
Maltreatment,[9] and one (1) count of Attempted Rape[10] for acts committed
against his minor[11] daughter AAA from 1999-2001.

Appellant pleaded not guilty to all the charges. On September 24, 2004, the RTC
dismissed[12] Criminal Case Nos. 1647 for Rape; 1648 for Unjust Vexation; 1650 for

154
Other Light Threats; 1652 for Unjust Vexation; and 1653 for Maltreatment, on the
basis of the Demurrer to Evidence[13] filed by appellant.
Sometime in August 1999, between 8:00 and 10:00 in the morning, AAA, together
with her brothers and her father, appellant herein, was in their residence
in Mountain Province, watching television. Appellant called AAA and ordered her to
sit in front of him. As she was sitting, appellant told her that it was not good for a
girl to have small breasts. Suddenly, he inserted his hands into AAAs shirt then
fondled her breast. AAA resisted by moving her hands backwards.[14]
One afternoon in September 1999, AAAs mother and brothers went to school
leaving AAA and appellant in their house. While in the masters bedroom, appellant
ordered AAA to join him inside. There, appellant removed his undergarments then
forced her to grasp and fondle his penis until he ejaculated. Appellant thereafter
told her not to be malicious about it.[15]
The same incident took place in August 2000. This time, appellant forced AAA to lie
down on the bed, went on top of her, removed her short pants and panty, then
rubbed his penis against her vaginal orifice. AAA resisted by crossing her legs but
appellant lifted her right leg and partially inserted his penis into her vagina. As she
struggled, appellant stood up then ejaculated. AAA felt numbness on her buttocks
after the bestial act committed against her.[16]
Appellant repeated his dastardly act against AAA on separate occasions in
September and November 2000. During these times, appellant satisfied himself by
rubbing his penis against AAAs vagina without trying to penetrate it. After reaching
the top of his lust, he used AAAs short pants to wipe his mess. Instead of keeping
her harrowing experience to herself, AAA narrated it to her best friend.[17]
On November 24, 2000, appellant approached AAA and told her that he wanted to
have sex with her. When she refused, appellant forcibly removed her pants and
boxed her right buttock. AAA still refused, which angered appellant. He then went
to the kitchen and returned with a bolo which he used in threatening her. Luckily,
AAAs grandmother arrived, prompting appellant to desist from his beastly
desires.[18]
On December 20, 2000, AAA and her best friend were doing their school work in
front of the formers house. When appellant arrived, he embraced AAA. He,
thereafter, pulled her inside the house and kissed her on the lips. [19]
The last incident occurred inside the comfort room of their house on May 27,
2001.When AAA entered, appellant pulled down her short pants and panty,
unzipped his trousers, brought out his penis, then repeatedly rubbed it on her
vagina while they were in a standing position.[20]
AAA decided to report the sexual abuses to her grandmother who forthwith
brought her to the National Bureau of Investigation where she was examined by the
medico-legal officer. It was found during the examination that there were no
extragenital physical injuries on AAAs body but there were old, healed, and
incomplete hymenal lacerations.[21]
Appellant denied all the accusations against him. He claimed that in August and
September 1999, he was at the house of his mistress in Antipolo City. He also
explained that in August 2000, he stayed in Baguio City and worked there as a
karate instructor. He added that he only went home in September 2000 but left
again in October for Quirino, Ilocos Sur where he stayed for three weeks. When he
went back home, his wife informed him that AAA had not been coming
home.Thereafter, appellant went to Baguio City to buy medicine for his wife, then
returned home again on the third week of December 2000. While there, he was
confronted by his wife about his womanizing. His wife got mad and refused to
forgive him despite his repeated pleas. Consequently, he became furious and
almost choked his wife to death when she ignored and refused to talk to him. This
prompted him to leave and go back to Baguio.[22]
Sometime in April 2001, appellant went back home to reconcile with his wife.While
talking to his wife and the latters family, his mother-in-law berated him and
demanded his separation from his wife. Appellant got mad and threatened to kill
his wifes family. His mother-in-law, in turn, threatened to file charges against
him.[23]
To belie the claim of AAA that she was sexually abused in August, November and
December 2000, allegedly during school hours, her teacher testified that the former
was not absent in class during those times.[24]
On November 24, 2004, AAA executed an Affidavit of Recantation[25] claiming that
while appellant indeed committed lascivious acts against her, she exaggerated her
accusations against him. She explained that appellant did not actually rape her, as
there was no penetration. She added that she charged appellant with such crimes
only upon the prodding of her mother and maternal grandmother.
On February 14, 2006, the RTC rendered a decision convicting appellant of six (6)
counts of acts of lasciviousness,[26] one (1) count of attempted rape[27] and one (1)
count of unjust vexation,[28] the dispositive portion of which reads:
WHEREFORE, a Consolidated Judgment is hereby rendered sentencing Salvino
Sumingwa to suffer
155
1. The penalty of six (6) months of [arresto mayor] as minimum to six (6) years of
[prision correccional] as maximum; and ordering him to pay the offended
party P10,000.00 [as] indemnity [ex-delicto], P10,000.00 as moral damages
and P5,000.00 as exemplary damages for each count of Acts of Lasciviousness
charged in Crim. Cases 1644, 1645, 1646, 1649 and 1654;
2. The penalty of six (6) years of [prision correccional] as minimum to twelve (12)
years of [prision mayor] as maximum; and ordering said offender to pay the
victim P15,000.00 as indemnity [ex-delicto], P15,000.00 as moral damages
and P10,000.00 as exemplary damages in Crim. Case 1651 for Attempted Rape; and
3. The penalty of thirty (30) days of [arresto menor] and fine of P200.00 for Unjust
Vexation in Crim. Case 1655.
SO ORDERED.[29]
The trial court gave credence to AAAs testimonies on the alleged lascivious acts
committed against her. In view of the withdrawal of her earlier claim of the fact of
penetration, the court sustained the innocence of appellant on the rape charges
and concluded that the crime committed was only Acts of Lasciviousness.
In Criminal Case No. 1651, the RTC found that appellant committed all the acts of
execution of the crime of Rape, but failed to consummate it because of the arrival
of AAAs grandmother. Hence, he was convicted of attempted rape. In embracing
and kissing AAA in full view of the latters best friend, appellant was convicted of
Unjust Vexation.
On appeal, the CA affirmed the conviction of appellant, except that in Criminal Case
No. 1646; it convicted him of Qualified Rape instead of Acts of Lasciviousness. The
pertinent portion of the assailed decision reads:
WHEREFORE, premises considered, herein appeal is hereby DISMISSED for evident
lack of merit and the assailed Consolidated Judgment dated 14 February 2006 is
hereby AFFIRMED with the following MODIFICATION:
1. The Appellant SALVINO SUMINGWA is hereby convicted of the crime
of QUALIFIED RAPE in Criminal Case No. 1646 and the penalty of RECLUSION
PERPETUA is hereby imposed upon him. The Appellant is likewise ordered to pay
the Victim, [AAA], civil indemnity in the amount of Php75,000.00 as well as moral
damages in the amount of Php50,000.00, in conformity with prevailing
jurisprudence.
2. In Criminal Case No. 1651 for Attempted Rape, the Appellant, is hereby ordered
to indemnify the victim [AAA] in the sum of P30,000.00 as civil indemnity, plus the
sum of P25,000.00 as moral damages.
SO ORDERED.[30]
The appellate court concluded that, notwithstanding AAAs retraction of her
previous testimonies, the prosecution sufficiently established the commission of the
crime of Rape. It added that the qualifying circumstances of minority and
relationship were adequately proven.
Hence, this appeal.
First, in light of the recantation of AAA, appellant questions the credibility of the
prosecution witnesses and insists that his constitutional right to be presumed
innocent be applied.[31] Second, he argues that in Criminal Case No. 1651 for
Attempted Rape, he should only be convicted of Acts of Lasciviousness, there being
no overt act showing the intent to have sexual intercourse.[32] Lastly, he insists that
he could not be convicted of all the charges against him for failure of the
prosecution to show that he employed force, violence or intimidation against AAA;
neither did the latter offer resistance to appellants advances.[33]
In rape cases particularly, the conviction or acquittal of the accused most often
depends almost entirely on the credibility of the complainants testimony. By the
very nature of this crime, it is generally unwitnessed and usually the victim is left to
testify for herself. When a rape victims testimony is straightforward and marked
with consistency despite grueling examination, it deserves full faith and confidence
and cannot be discarded.[34] If such testimony is clear, consistent and credible to
establish the crime beyond reasonable doubt, a conviction may be based on it,
notwithstanding its subsequent retraction. Mere retraction by a prosecution
witness does not necessarily vitiate her original testimony. [35]
A retraction is looked upon with considerable disfavor by the courts.[36] It is
exceedingly unreliable for there is always the probability that such recantation may
later on be repudiated. It can easily be obtained from witnesses through
intimidation or monetary consideration.[37] Like any other testimony, it is subject to
the test of credibility based on the relevant circumstances and, especially, on the
demeanor of the witness on the stand.[38]
As correctly held by the CA, AAAs testimony is credible notwithstanding her
subsequent retraction. We quote with approval its ratiocination in this wise:
156
Clearly, the retraction made by the Victim is heavily unreliable. The primordial
factor that impelled the Victim to retract the rape charges against her father was
her fear and concern for the welfare of her family especially her four (4) siblings.It
does not go against reason or logic to conclude that a daughter, in hopes of bringing
back the harmony in her family tormented by the trauma of rape, would eventually
cover for the dastardly acts committed by her own father. Verily, the Victims
subsequent retraction does not negate her previous testimonies accounting her
ordeal in the hands for (sic) her rapist.[39]
We now proceed to discuss the specific crimes with which appellant was charged.
Criminal Case Nos. 1646, 1649 and 1654 for Rape
The CA correctly convicted appellant of Qualified Rape in Criminal Case No. 1646,
and of Acts of Lasciviousness in Criminal Case Nos. 1649 and 1654.
The crime of rape is defined in Article 266-A of the Revised Penal Code (RPC), as
amended by the Anti-Rape Law of 1997, as follows:
ART. 266-A. Rape, When and How Committed. - Rape is committed
1. By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a. Through force, threat or intimidation.
In her direct testimony, AAA stated that appellant removed her short pants and
panty, went on top of her and rubbed his penis against her vaginal orifice. She
resisted by crossing her legs but her effort was not enough to prevent appellant
from pulling her leg and eventually inserting his penis into her vagina. Clearly, there
was penetration.
It is noteworthy that appellant pulled AAAs leg, so that he could insert his penis into
her vagina. This adequately shows that appellant employed force in order to
accomplish his purpose. Moreover, in rape committed by a father against his own
daughter, the formers moral ascendancy and influence over the latter may
substitute for actual physical violence and intimidation. The moral and physical
dominion of the father is sufficient to cow the victim into submission to his beastly
desires, and no further proof need be shown to prove lack of the victims consent to
her own defilement.[40]
While appellants conviction was primarily based on the prosecutions testimonial
evidence, the same was corroborated by physical evidence consisting of the medical
findings of the medico-legal officer that there were hymenal lacerations. When a
rape victims account is straightforward and candid, and is corroborated by the
medical findings of the examining physician, the same is sufficient to support a
conviction for rape.[41]
Aside from the fact of commission of rape, the prosecution likewise established that
appellant is the biological father of AAA and that the latter was then fifteen
(15) [42] years old. Thus, the CA aptly convicted him of qualified rape, defined and
penalized by Article 266-B of the RPC, viz.:
ART. 266-B. Penalties. x x x.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any
of the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common law spouse of the parent of the victim.
In view of the effectivity of Republic Act (R.A.) 9346, appellant was correctly meted
the penalty of reclusion perpetua, without eligibility for parole.
As to damages, appellant should pay AAA P75,000.00 as civil indemnity, which is
awarded if the crime is qualified by circumstances that warrant the imposition of
the death penalty.[43] In light of prevailing jurisprudence,[44] we increase the award
of moral damages from P50,000.00 to P75,000.00. Further, the award of exemplary
damages in the amount of P30,000.00[45] is authorized due to the presence of the
qualifying circumstances of minority and relationship.[46]
In Criminal Case Nos. 1649 and 1654, although appellant was charged with qualified
rape allegedly committed on the second week of November 2000 and May 27,
2001, he should be convicted with Acts of Lasciviousness committed against a child
under Section 5(b), Article III of R.A. 7610,[47] which reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
157
conduct, are deemed to be children exploited in prostitution and other sexual
abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall
be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: Provided, That
when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815,
as amended, the Revised Penal Code, for rape or lascivious conduct, as the case
may be: Provided, That the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium period; x x x.
(Italics supplied.)
The elements of sexual abuse under the above provision are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to
other sexual abuse.
3. The child, whether male or female, is below 18 years of age.[48]
AAA testified that in November 2000, while she and appellant were inside the
bedroom, he went on top of her and rubbed his penis against her vaginal orifice
until he ejaculated.[49] She likewise stated in open court that on May 27, 2001, while
inside their comfort room, appellant rubbed his penis against her vagina while they
were in a standing position.[50] In both instances, there was no penetration, or even
an attempt to insert his penis into her vagina.
The aforesaid acts of the appellant are covered by the definitions of sexual abuse
and lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on
the Reporting and Investigation of Child Abuse Cases promulgated to implement
the provisions of R.A. 7610:
(g) Sexual abuse includes the employment, use, persuasion, inducement,
enticement or coercion of a child to engage in, or assist another person to engage
in, sexual intercourse or lascivious conduct or the molestation, prostitution, or
incest with children;
(h) Lascivious conduct means the intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person, whether
of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or public area of a person.
Following the variance doctrine embodied in Section 4, in relation to Section 5, Rule
120 of the Rules of Criminal Procedure, appellant can be found guilty of the lesser
crime of Acts of Lasciviousness committed against a child. The pertinent provisions
read:
SEC. 4. Judgment in case of variance between allegation and proof. When there is
variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in
the offense charged, or of the offense charged which is included in the offense
proved.
SEC. 5. When an offense includes or is included in another. An offense charged
necessarily includes the offense proved when some of
the essential elements oringredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily included in
the offense proved, when the essential ingredients of the former constitute or form
part of those constituting the latter.
As the crime was committed by the father of the offended party, the alternative
circumstance of relationship should be appreciated. In crimes against chastity, such
as Acts of Lasciviousness, relationship is always aggravating.[51]
Section 5(b) of R.A. 7610 prescribes the penalty of reclusion temporal in its medium
period to reclusion perpetua. Since there is an aggravating circumstance and no
mitigating circumstance, the penalty shall be applied in its maximum period ---
reclusion perpetua for each count.[52]
Consistent with previous rulings[53] of the Court, appellant must also indemnify AAA
in the amount of P15,000.00 as moral damages and pay a fine in the same amount
in Criminal Case Nos. 1649 and 1654.
158

Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness
Appellant is likewise guilty of two (2) counts of Acts of Lasciviousness under Section
5(b), Article III, R.A. 7610 committed against AAA on the second week of August
1999 and on the first week of September 1999. AAA testified that in August,
appellant, with lewd design, inserted his hands inside her shirt then fondled her
breasts; and in September, he forced her to hold his penis until he ejaculated.
The trial and the appellate courts were correct in giving credence to the victims
testimony, in dismissing appellants defense of denial and alibi, and in disbelieving
that AAA initiated the criminal cases only upon the prodding of the latters
grandmother. Settled jurisprudence tells us that the mere denial of ones
involvement in a crime cannot take precedence over the positive testimony of the
offended party.[54]
We are not unmindful of the fact that appellant was specifically charged in an
Information for Acts of Lasciviousness defined and penalized by Article 336 of the
RPC. However, the failure to designate the offense by statute, or to mention the
specific provision penalizing the act, or an erroneous specification of the law
violated, does not vitiate the information if the facts alleged clearly recite the facts
constituting the crime charged.[55] The character of the crime is not determined by
the caption or preamble of the information nor from the specification of the
provision of law alleged to have been violated, but by the recital of the ultimate
facts and circumstances in the complaint or information.[56]
In the present case, the body of the information contains an averment of the acts
alleged to have been committed by appellant which unmistakably refers to acts
punishable under Section 5(b), Article III, R.A. 7610.
Appellant should, therefore, be meted the same penalties and be made to answer
for damages as in Criminal Case Nos. 1649 and 1654.
Criminal Case No. 1651 for Attempted Rape
AAA testified that on November 24, 2000, while AAA and her brothers were
sleeping inside their parents bedroom, appellant entered and asked AAA to have
sex with him. When AAA refused, appellant forcibly removed her clothes and boxed
her right buttock. As she still resisted, he took a bolo, which he poked at
her.Appellant desisted from committing further acts because of the timely arrival of
AAAs grandmother. With these, appellant was charged with Other Light Threats in
Criminal Case No. 1650; Attempted Rape in Criminal Case No. 1651; Unjust Vexation
in Criminal Case No. 1652; and Maltreatment in Criminal Case No. 1653.
On September 24, 2004, the RTC dismissed Criminal Case Nos. 1650, 1652 and 1653
for insufficiency of evidence. Criminal Case No. 1651, among others, proceeded,
however. Eventually, appellant was convicted of Attempted Rape, which the CA
affirmed.
A careful review of the records reveals, though, that the evidence is insufficient to
support appellants conviction of Attempted Rape.
Rape is attempted when the offender commences the commission of rape directly
by overt acts and does not perform all the acts of execution by reason of some
cause or accident other than his own spontaneous desistance. [57] The prosecution
must, therefore, establish the following elements of an attempted felony:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the
felony;
3. The offenders act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident
other than his spontaneous desistance.[58]
The attempt that the RPC punishes is that which has a logical connection to a
particular, concrete offense; and that which is the beginning of the execution of the
offense by overt acts of the perpetrator, leading directly to its realization and
consummation.[59] In the instant case, the primary question that comes to the fore
is whether or not appellants act of removing AAAs pants constituted an overt act of
Rape.
We answer in the negative.
Overt or external act has been defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.[60]
The evidence on record does not show that the above elements are present. The
detailed acts of execution showing an attempt to rape are simply lacking. It would
be too strained to construe appellants act of removing AAAs pants as an overt act
159
that will logically and necessarily ripen into rape. Hence, appellant must be appellant is sentenced to 30 days of arresto menor and to pay a fine of P200.00,
acquitted of Attempted Rape. with the accessory penalties thereof.

Neither can we hold appellant liable for Other Light Threats for threatening AAA
with a bolo; for Unjust Vexation for undressing her without her consent, causing
disturbance, torment, distress, and vexation; nor for Maltreatment for boxing the
right side of AAAs buttocks. Although all of the above acts were alleged in the
Information for Attempted Rape in the Order dated September 24, 2004, Criminal
Case Nos. 1650, 1652 and 1653 involving the above crimes were dismissed for
insufficiency of evidence based on the demurrer to evidence filed by appellant.
The order granting appellants demurrer to evidence was a resolution of the case on
the merits, and it amounted to an acquittal. Any further prosecution of the accused
after an acquittal would violate the proscription on double jeopardy. [61]Accordingly,
appellants conviction of any of the above crimes, even under Criminal Case No.
1651, would trench in his constitutional right against double jeopardy.
Criminal Case No. 1655 for Unjust Vexation
Appellant was charged with Unjust Vexation, defined and penalized by Article 287
of the RPC, which reads:
ART. 287. Light coercions. Any person who, by means of violence, shall seize
anything belonging to his debtor for the purpose of applying the same to the
payment of the debt, shall suffer the penalty of arresto mayor in its minimum
period and a fine equivalent to the value of the thing, but in no case less than 75
pesos.
WHEREFORE, the Court AFFIRMS the January 31, 2008 Court of Appeals Decision in
CA-G.R. CR No. 30045 with MODIFICATIONS. The Court finds appellant Salvino
Sumingwa:
1. GUILTY of QUALIFIED RAPE in Criminal Case No. 1646. He is sentenced to suffer
the penalty of reclusion perpetua without eligibility for parole and ordered to pay
AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00
as exemplary damages.
2. GUILTY of four (4) counts of ACTS OF LASCIVIOUSNESS under Section 5 (b) Article
III of R.A. 7610 in Criminal Case Nos. 1644, 1645, 1649, and 1654. He is sentenced to
suffer the penalty of reclusion perpetua and ordered to pay AAA P15,000.00 as
moral damages and a fine of P15,000.00, for EACH COUNT.
3. NOT GUILTY in Criminal Case No. 1651.
4. GUILTY of UNJUST VEXATION in Criminal Case No. 1655. He is sentenced to
suffer 30 days of arresto menor and to pay a fine of P200.00, with the accessory
penalties thereof.
SO ORDERED

Any other coercion or unjust vexation shall be punished by arresto menoror a fine
ranging from 5 to 200 pesos, or both.

The second paragraph of this provision is broad enough to include any human
conduct that, although not productive of some physical or material harm, could
unjustifiably annoy or vex an innocent person. The paramount question to be
considered is whether the offenders act caused annoyance, irritation, torment,
distress, or disturbance to the mind of the person to whom it was directed. [62]

Appellants acts of embracing, dragging and kissing AAA in front of her friend
annoyed AAA. The filing of the case against appellant proved that AAA was
disturbed, if not distressed by the acts of appellant.

The penalty for coercion falling under the second paragraph of Article 287 of the
RPC is arresto menor or a fine ranging from P5.00 to P200.00 or both. Accordingly,

160
EN BANC
[G.R. No. 126124. January 20, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZALDY P. PADILLA, accused-
appellant.
DECISION
MENDOZA, J.:
For review in this case is a decision, dated May 8, 1997, of the Regional Trial Court,
Branch XLV, at Urdaneta City, Pangasinan, finding accused-appellant Zaldy P. Padilla
guilty of rape and imposing on him the penalty of death. The trial court also ordered
accused-appellant Padilla to indemnify the offended party, Maria Aurora B.
Bautista, in the amount of P50,000.00 and to pay the costs.
The evidence for the prosecution shows that at around 5 oclock in the afternoon on
April 27, 1995, Maria Aurora, a 13-year old retardate, was in the citrus farm owned
by a neighbor, Jose Sagun, when accused-appellant accosted her. The latter, who is
married with two children, was then 26 years old and employed by Sagun as a
farmhand. Armed with a scythe and a knife, accused-appellant forced Maria Aurora
to undress and lie down on the grass. As she lay on there, accused-appellant forced
himself on her, saying: Kantot tayo (Lets have sexual intercourse).Maria Aurora
resisted accused-appellants advances, but she proved to be no match for
him.Accused-appellant succeeded in ravishing her.
Maria Aurora told her father, Engracio L. Bautista, what happened to her in the
evening. She was taken to the Governor Teofilo Sison Memorial Hospital, where she
was examined by Dr. Luisa F. Cayabyab. Afterwards, the matter was reported to the
Pozorrubio Police Station.[1]
On May 2, 1995, Engracio filed a complaint[2] in the Municipal Circuit Trial Court,
Pozorrubio, Pangasinan. After a preliminary investigation, the court found probable
cause that the crime had been committed and that accused-appellant was guilty
thereof. Accordingly, the case was referred to the Office of the Provincial
Prosecutor, Urdaneta City, Pangasinan which on May 26, 1995 filed an
information[3] for rape in the Regional Trial Court, Branch XLV, at Urdaneta City
against accused-appellant, the pertinent portion of which reads:
The undersigned upon previous complaint sworn to by the father of the offended
party accuses ZALDY PADILLA Y PILONGO alias LABO, of the crime of RAPE,
committed as follows:
That on or about the 27th day of April, 1995 at Barangay Bobonan East,
Municipality of Pozorrubio, Province of Pangasinan and within the jurisdiction of
this Honorable Court, the above-named accused, by means of force and
intimidation, did then and there wilfully, unlawfully and feloniously have carnal
knowledge of the complainant, Maria Aurora Bautista, a minor of about 13 years
old, against the latters will.
CONTRARY to Article 335, Revised Penal Code.
Urdaneta, Pangasinan, May 26, 1995.
Upon being arraigned, accused-appellant pleaded not guilty to the charge,
whereupon hearings were held on December 6, 1995, January 23, January 31,
February 22, and March 27, 1996. On May 8, 1996, judgment was rendered finding
accused-appellant Zaldy Padilla guilty of rape and sentencing him to death:
WHEREFORE, the Court finds the accused ZALDY PADILLA Y PILONGO GUILTY
beyond reasonable doubt of the crime of RAPE defined and penalized under
Republic Act No. 7659, the offense having been committed with the attendant
circumstances of use of a deadly weapon, disregard of the respect due to the
offended party on account of her age, and abuse of superior strength; and hereby
sentences him to suffer the supreme penalty of DEATH, to be executed pursuant to
R.A. No. 8177, otherwise known as the Lethal Injection Law, and to pay the
complainant MA. AURORA BAUTISTA in the amount of P50,000.00 as damages, and
to pay the costs.
Hence, this appeal. Accused-appellant raises this lone assignment of error:
THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE AGAINST THE ACCUSED-
APPELLANT THE TESTIMONY OF THE ALLEGED VICTIM DESPITE THE FACT THAT THE
LATTER IS INCOMPETENT TO TESTIFY DUE TO HER MENTAL HANDICAP.
Accused-appellants contention is without merit.
First. The basic test of a witness qualification is of course whether he can perceive
and, perceiving, can make known his perception to others.[4] Negatively put, Rule
130, 21 of the Revised Rules of Court provides:
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination,
is such that they are incapable of intelligently making known their perception to
others;
(b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and relating them
truthfully.
Hence, a mental retardate is not, by reason of such handicap alone, disqualified
from testifying in court. He or she can be a witness, depending on his or her ability
to relate what he or she knows. If the testimony of a mental retardate is coherent,
the same is admissible in court.[5]Thus, we have in several cases[6] upheld the
conviction of the accused based mainly on statements given in court by the victim
who was a mental retardate.
Trial courts, which have the opportunity to observe the facial expressions, gestures,
and tone of voice of a witness while testifying, are competent to determine
whether his or her testimony will be given credence.[7] In the instant case, the trial
court accorded weight to the testimony of Maria Aurora. Indeed, the complainants
truthfulness is evident in her testimony:
Prosecutor Emiliano M. Matro:
Now, on April 27, 1995, between 4 and 5 oclock in the afternoon, can you recall
where you were?
A: I was at the calamansi orchard.
161
Q: Who owns that calamansi orchard? ....
A: Tiaging. Q: Will you describe the organ of Labo?
Q: What were you doing there at that time? A: It was big. (The witness demonstrated a length of about 4 to 5 inches)
A: I was looking for my scythe. ....
Q: What happened, did you find your scythe? Q: Did you scream when he inserted his penis?
A: I was undressed. A: Yes.[8]
Q: Who undressed you? The complainants testimony is corroborated by the finding of Dr. Luisa F. Cayabyab,
A: Labo. who examined Maria Aurora in the evening of April 27, 1995. Dr. Cayabyab found
Q: Do you know the real name of Labo? fresh lacerations in her hymen, most probably caused by the entrance of a
A: Zaldy Padilla. hardened penis.[9] The relevant portions of the medical certificate,[10] dated April 28,
Q: If Zaldy Padilla alias Labo is now in the courtroom, can you identify him? 1995, which Dr. Cayabyab issued after examining Maria Aurora read:
A: That person. Perineum : no sign of external injury
(The witness pointed at a person who, when asked his name, answered Zaldy Hymen : with fresh lacerations at 3 and 9 oclock positions
Padilla.) Vagina : admits 1 finger
Q: You mentioned something about a scythe. Were you able to find it? Cervix : close
A: It was in the possession of Labo. Uterus : small
Q: You said that Zaldy Padilla alias Labo undressed you. What did you do after that? Spermatozoa : negative
A: He pulled me. Second. During the trial, the prosecution presented evidence tending to show that
Judge Costales: Maria Aurora is a mental retardate.[11] Significantly, accused-appellant also
At this point, the public is hereby directed to go outside. Close the door. Even the admitted this point during his direct examination.[12] It is settled that sexual
father and mother of the complainant should go outside. intercourse with a woman who is a mental retardate constitutes statutory rape,
Q: After Labo pulled you, what did you do, if anything? which does not require proof that the accused used force or intimidation in having
A: He brought out a knife and tried to stab me. carnal knowledge of the victim for conviction.[13] However, this fact was not alleged
.... in the information[14] in this case and, therefore, cannot be the basis for conviction.
Q: You were undressed at that time? At any rate, there is adequate evidence to show that the accused-appellant used
A: Yes. force and intimidation in committing the crime of rape in this case.
Q: After that, what did you do? The defense makes much of Maria Auroras admission that she did not put up a
A: He told me, Kantot tayo. determined resistance against accused-appellant. For instance, she answered at
Q: Did he have sexual intercourse with you? one point that she did not fight back when accused-appellant laid her down on the
A: Yes. grass.[15] However, the law does not impose a burden on the rape victim to prove
Q: How did he do that with you? resistance.[16] The fact that the victim did not resist the accused by struggling or
A: He made me lie down. shouting for help does not negate the use of force and intimidation. [17] The use of a
Judge Costales: knife and the threat of harm may be sufficient to intimidate the victim to
How about the knife? obedience.[18]
A: I bled. Maria Aurora, a minor, cannot be expected to react under such circumstances like a
Q: Where did you bleed? mature woman. Because of her immaturity, she can be easily intimidated, subdued,
A: Here. (The witness pointed at her vagina). and terrified by a strong man like accused-appellant Padilla.[19] There can be no
Q: What did you feel while Labo was having sexual intercourse with you? doubt that Maria Aurora was forced by accused-appellant to have sexual
A: It hurt. It was painful. intercourse with him, and that she eventually submitted to him out of fear from the
Q: How long did Labo had (sic) sexual intercourse with you? following answers she gave to the trial court:
A: For a short time only. Q: Why did you not fight Labo?
Q: After that, what did he do? A: I was afraid, he might maul me.
A: Nothing more. ....

162
Q: Where was the knife or the scythe you were mentioning at that time? as to justify the consideration of disregard of the respect due to the victim by
A: It was in his possession, sir. reason of his or her age. Even if such aggravating circumstance could be considered
Q: He was holding it? in this case, it nonetheless cannot be appreciated because nothing appears in the
A: Yes. record from which it may be presumed that in the commission of the crime,
Q: What hand? accused-appellant deliberately intended to offend or insult the age of the offended
A: Right hand. party.[32] Nor can the aggravating circumstance of abuse of superior strength be
Q: Was it a knife or a scythe? appreciated as the trial court did, since the consideration of the same requires
A: Scythe. No, he had no scythe in his possession. evidence of the relative physical conditions of the assailant and the victim, which
Q: When he was having sexual intercourse with you? the prosecution failed to present.[33] As the penalty for rape when committed with
A: Yes. the use of a deadly weapon is reclusion perpetua to death, the penalty of reclusion
Q: However, he had a knife at that time, only he laid it on the ground when he had perpetua should be imposed in the absence of any aggravating circumstances.[34]
sexual intercourse with you. It is also to be noted that the trial court ordered accused-appellant to pay the
A: Yes. complainant only the civil liability arising from the offense in the amount
Q: And because he had a scythe, you were afraid that he might kill you if you resist? of P50,000.00. This is equivalent to actual or compensatory damages in civil law.
A: Yes.[20] However, in addition to such amount the offended party is entitled to moral
There are minor inconsistencies in the testimony of Maria Aurora, such as her damages, which is automatically granted in rape cases without need of any proof.
confusion whether it was a knife or a scythe which accused-appellant placed on the Currently, moral damages for rape is fixed at P50,000.00.[35] Hence, the additional
grass above her head after he had forced her to lie down. However, as we have held sum of P50,000.00 should be awarded to Maria Aurora B. Bautista.
in a number of cases, such inconsequential lapses can be expected of a young girl WHEREFORE, the decision dated May 8, 1996 of the Regional Trial Court, Branch
who was raped, in view of the harrowing experience she is called upon to XLV, Urdaneta City, Pangasinan is hereby AFFIRMED, with the modification that
recall.[21] Such minor inconsistencies, far from detracting from the veracity of her accused-appellant is sentenced to reclusion perpetua and is ordered to
testimony, in fact tend to bolster it.[22] pay P50,000.00 to Maria Aurora B. Bautista by way of moral damages in addition to
Third. To rebut the evidence presented against him, accused-appellant claimed the amount of P50,000.00 which the trial court ordered accused-appellant to pay as
that, at the time of the rape, he was in their hut preparing supper with two other indemnity.
farmhands.[23] One of the farmhands, Santiago Sagun, corroborated accused- SO ORDERED.
appellants claim.[24] This claim cannot prevail over the positive identification of
accused-appellant.[25] In the instant case, Maria Aurora pointed out accused-
appellant in open court as the person who had molested her.[26]Furthermore, for
the defense of alibi to be given weight, it must be shown that it was impossible for
the accused to have been present at the place where the crime was perpetrated at
the time of its commission.[27] But in this case, the hut where accused-appellant
claimed he was in with the two other farmhands is only a short distance from the
scene of the rape.[28] Hence, the trial court correctly rejected his alibi.
The trial court also correctly found that the rape was committed with the use of a
deadly weapon and, therefore, the imposable penalty is reclusion perpetua to
death.[29] However, it erred in appreciating the aggravating circumstances of
disregard of the respect due to the victim by reason of his or her age and abuse of
superior strength. Although disregard of the respect due to the victim by reason of
his or her age can be taken into account where the victim is of old age as well as of
tender age,[30] the same can be considered only in cases of crimes against persons
and honor.[31] At the time of the rape on April 27, 1995, rape was classified as a
crime against chastity. R.A. No. 8353 classifying it as a crime against persons took
effect only on October 22, 1997 and cannot therefore be given retroactive effect so

163

EN BANC
[G.R. Nos. 132875-76. November 16, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G.
JALOSJOS, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This Court has declared that the state policy on the heinous offense of
rape is clear and unmistakable. Under certain circumstances, some of them
present in this case, the offender may be sentenced to a long period of
confinement, or he may suffer death. The crime is an assault on human
dignity. No legal system worthy of the name can afford to ignore the
traumatic consequences for the unfortunate victim and grievous injury to the
peace and good order of the community.[1]
Rape is particularly odious, one which figuratively scrapes the bottom of
the barrel of moral depravity, when committed against a minor.[2]
In view of the intrinsic nature of the crime of rape where only two
persons are usually involved, the testimony of the complainant is always
scrutinized with extreme caution.[3]
In the present case, there are certain particulars which impelled the
court to devote an even more painstaking and meticulous examination of the
facts on record and a similarly conscientious evaluation of the arguments of
the parties. The victim of rape in this case is a minor below twelve (12) years
of age. As narrated by her, the details of the rape are mesmerically sordid
and repulsive. The victim was peddled for commercial sex by her own
guardian whom she treated as a foster father. Because the complainant was
a willing victim, the acts of rape were preceded by several acts of
lasciviousness on distinctly separate occasions. The accused is also a most
unlikely rapist. He is a member of Congress. Inspite of his having been
charged and convicted by the trial court for statutory rape, his constituents
liked him so much that they knowingly re-elected him to his congressional
office, the duties of which he could not perform.
Statutory rape committed by a distinguished Congressman on an eleven
(11) year old commercial sex worker is bound to attract widespread media
and public attention. In the words of accused-appellant, he has been
demonized in the press most unfairly, his image transmogrified into that of a
dastardly, ogre, out to get his slimy hands on innocent and nave girls to
satiate his lustful desires.[4] This Court, therefore, punctiliously considered
accused-appellants claim that he suffered invidiously discriminatory
treatment. Regarding the above allegation, the Court has ascertained that
the extensive publicity generated by the case did not result in a mistrial; the
records show that the accused had ample and free opportunity to adduce his
defenses.
This is an appeal from the decision[5] of the Regional Trial Court of
Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convicting
accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and in
Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-
1993, for six (6) counts of acts of lasciviousness defined and penalized under
Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic
Act No. 7610, also known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994,
96-1995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was
acquitted of the charges of acts of lasciviousness for failure of the
prosecution to prove his guilt beyond reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory
rape; and twelve (12) for acts of lasciviousness defined and penalized under
Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic
Act No. 7610, were filed against accused-appellant. The accusatory portion
of said informations for the crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended party, eleven
(11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of
the crime of RAPE defined and penalized under Art. 335 (3) of the Revised
Penal Code, committed as follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City,
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge with (sic) eleven year old minor Rosilyn Delantar against her will,
with damage and prejudice.
CONTRARY TO LAW.[6]
In Criminal Case No. 96-1986:
164
The undersigned, upon prior sworn complaint by the offended party, eleven
(11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of
the crime of RAPE defined and penalized under Art. 335 (3) of the Revised
Penal Code, committed as follows:
That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City,
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge with (sic) eleven year old minor Rosilyn Delantar against her will,
with damage and prejudice.
CONTRARY TO LAW.[7]
For acts of lasciviousness, the informations [8] under which accused-
appellant was convicted were identical except for the different dates of
commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20,
1996; June 21, 1996; and June 22, 1996, to wit:
The undersigned, upon prior sworn complaint by the offended party, eleven
(11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of
the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article
III of Republic Act No. 7610, otherwise known as the Special Protection of
Children against Abuse, Exploitation and Discrimination Act, committed as
follows:
That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz
Towers, Makati City, Metro-Manila and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd design, did then and
there wilfully, unlawfully and feloniously kiss, caress and fondle said
complainant's face, lips, neck, breasts, whole body, and vagina, suck her
nipples and insert his finger and then his tongue into her vagina, place
himself on top of her, then insert his penis in between her thighs until
ejaculation, and other similar lascivious conduct against her will, to her
damage and prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were
added averments that on the different dates, the accused gave the
complainant P10,000.00, P5,000.00 and P5,000.00 respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to
enter a plea. Hence, the trial court entered a plea of not guilty for him. At the
trial, the prosecution presented eight (8) main witnesses and seven (7)
rebuttal witnesses as well as documentary evidences marked as Exhibits A
to EEEE, inclusive of submarkings. The defense, on the other hand
presented twenty-six (26) witnesses. Its documentary evidence consists of
Exhibits 1 to 153, inclusive of submarkings. The records of the case are
extremely voluminous.
The Peoples version of the facts, culled mainly from the testimony of the
victim, are as follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long,
straight black hair and almond-shaped black eyes. She grew up in a two-
storey apartment in Pasay City under the care of Simplicio Delantar, whom
she treated as her own father. Simplicio was a fifty-six year old homosexual
whose ostensible source of income was selling longganiza and tocino and
accepting boarders at his house. On the side, he was also engaged in the
skin trade as a pimp.
Rosilyn never got to see her mother, though she had known a younger
brother, Shandro, who was also under the care of Simplicio. At a very young
age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to
his illicit activities. She and her brother would tag along with Simplicio
whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn
was offered by Simplicio as a prostitute to an Arabian national known as Mr.
Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for
sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in
February 1996 at his office located near Robinsons Galleria. Rosilyn and
Simplicio were brought there and introduced by a talent manager by the
name of Eduardo Suarez. Accused-appellant promised to help Rosilyn
become an actress. When he saw Rosilyn, accused-appellant asked how old
she was. Simplicio answered, 10. She is going to be 11 on May 11. Accused-
appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing,
so she sang the song, Tell Me You Love Me.Accused-appellant then asked if
Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He
asked if she was already menstruating, and Simplicio said yes. Accused-
appellant further inquired if Rosilyn already had breasts. When nobody
answered, accused-appellant cupped Rosilyns left breast. Thereafter,
accused-appellant assured them that he would help Rosilyn become an
actress as he was one of the producers of the TV programs, Valiente and Eat
Bulaga.
Simplicio and Suarez then discussed the execution of a contract for
Rosilyns movie career.Accused-appellant, on the other hand, said that he
would adopt Rosilyn and that the latter would have to live with him in his
condominium at the Ritz Towers. Before Simplicio and Rosilyn went home,
accused-appellant gave Rosilyn P2,000.00.
165
 The second time Rosilyn met accused-appellant was at his
condominium unit, located at Room 1702, Ritz Towers, Makati City.
Accused-appellant and Simplicio discussed the contract and his plan to
finance Rosilyns studies. Accused-appellant gave Simplicio P500.00,
thereafter, Rosilyn, Shandro and Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at
Ritz Towers to discuss her acting career. Accused-appellant referred the
preparation of Rosilyns contract to his lawyer, who was also present. After
the meeting, Simplicio and Rosilyn left. As they were walking towards the
elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn
returned to accused-appellants condominium unit at Ritz Towers. When
accused-appellant came out of his bedroom, Simplicio told Rosilyn to go
inside the bedroom, while he and accused-appellant stayed outside.After a
while, accused-appellant entered the bedroom and found Rosilyn watching
television. He walked towards Rosilyn and kissed her on the lips, then left the
room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio
that accused-appellant kissed her to which Simplicio replied, Halik lang
naman.
Rosilyn was left alone in the bedroom watching television. After some
time, accused-appellant came in and entered the bathroom. He came out
clad in a long white T-shirt on which was printed the word, Dakak. In his hand
was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted to
change her clothes. Rosilyn protested and told accused-appellant that she
can do it herself, but accused-appellant answered, Daddy mo naman
ako. Accused-appellant then took off Rosilyns blouse and skirt. When he was
about to take off her panties, Rosilyn said, Huwag po. Again, accused-
appellant told her, After all, I am your Daddy. Accused-appellant then
removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accused-
appellant turned off the lamp and the television. He turned to Rosilyn and
kissed her lips. He then raised her shirt, touched her breasts and inserted his
finger into her vagina. Rosilyn felt pain and cried out, Tama na po. Accused-
appellant stopped. He continued to kiss her lips and fondle her
breasts. Later, accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant
whom she found bent over and kissing her. He told her to get up, took her
hand and led her to the bathroom. He removed Rosilyns shirt and gave her a
bath. While accused-appellant rubbed soap all over Rosilyns body, he
caressed her breasts and inserted his finger into her vagina. After that, he
rinsed her body, dried her with a towel and applied lotion on her arms and
legs. Then, he dried her hair and told her to dress up. Rosilyn put on her
clothes and went out of the bathroom, while accused-appellant took a
shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom
watching television.When accused-appellant entered the room, he knelt in
front of her, removed her panties and placed her legs on his shoulders. Then,
he placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00
and told his housemaid to take her shopping at Shoemart. When she
returned to the Ritz Towers, Simplicio was waiting for her. The two of them
went home. Rosilyn narrated to Simplicio what accused-appellant did to her,
and pleaded for him not to bring her back to the Ritz Towers. Simplicio told
her that everything was alright as long as accused-appellant does not have
sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio
again brought Rosilyn to the Ritz Towers. After Simplicio left, accused-
appellant removed Rosilyns clothes and dressed her with the same long T-
shirt. They watched television for a while, then accused-appellant sat beside
Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt
above her breasts, and inserted his finger into her vagina. Then, accused-
appellant removed his own clothes, placed his penis between Rosilyns thighs
and made thrusting motions until he ejaculated on her thighs. Thereafter,
accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep
and bathed her. Again, he rubbed soap all over her body, washed her hair,
and thereafter rinsed her body and dried her hair. While accused-appellant
was bathing Rosilyn, he asked her to fondle his penis while he caressed her
breasts and inserted his finger into her vagina. After their shower, accused-
appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait
for Simplicio in the condominium unit. On their way home, Simplicio told
Rosilyn that if accused-appellant tries to insert his penis into her vagina, she
should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the
Ritz Towers. They found accused-appellant sitting on the bed in his
bedroom. Simplicio told Rosilyn to approach accused-appellant, then he
left. Accused-appellant took off Rosilyns clothes and dressed her with a long
T-shirt on which was printed a picture of accused-appellant and a woman,
with the caption, Cong. Jalosjos with his Toy. They watched television for a
while, then accused-appellant lay beside Rosilyn and kissed her on the
lips. He raised her shirt and parted her legs. He positioned himself between
the spread legs of Rosilyn, took off his own shirt, held his penis, and poked
and pressed the same against Rosilyns vagina. This caused Rosilyn pain
inside her sex organ. Thereafter, accused-appellant fondled her breasts and
told her to sleep.
166
 When Rosilyn woke up the following morning, June 19, 1996, accused-
appellant was no longer around but she found P5,000.00 on the table. Earlier
that morning, she had felt somebody touching her private parts but she was
still too sleepy to find out who it was. Rosilyn took a bath, then went off to
school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21,
1996, at about 9:00 oclock in the evening in his bedroom at the Ritz
Towers. Accused-appellant stripped her naked and again put on her the long
shirt he wanted her to wear. After watching television for a while, accused-
appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and
inserted his finger into her vagina. Then, he clipped his penis between
Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter,
Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-
appellant who was kissing her and fondling her sex organ. She, however,
ignored him and went back to sleep. When she woke up, she found the
P5,000.00 which accused-appellant left and gave the same to Simplicio
Delantar, when the latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that
visit, accused-appellant took photographs of Rosilyn. He asked her to pose
with her T-shirt pulled down thereby exposing her breasts. He also took her
photographs with her T-shirt rolled up to the pelvis but without showing her
pubis, and finally, while straddled on a chair facing the backrest, showing her
legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled
her breasts and inserted his finger into her vagina. The following morning,
she woke up and found the P5,000.00 left by accused-appellant on the
table. She recalled that earlier that morning, she felt somebody caressing her
breasts and sex organ.
On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz
Towers. Rosilyn had to wait for accused-appellant, who arrived between
12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to
what he was wearing. While sitting on the bed, accused-appellant kissed her
lips and inserted his tongue into her mouth. He then fondled her breasts and
inserted his finger into her vagina, causing her to cry in pain. Accused-
appellant stopped and told her to sleep.
The next morning, accused-appellant bathed her again. While he
soaped her body, he fondled her breasts and inserted his finger in her
vagina. Rosilyn felt pain and shoved his hand away. After bathing her,
accused-appellant had breakfast. Before he left, he gave Rosilyn
P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and
then they left for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz
Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns
clothes, including her panties, and dressed her with a long T-shirt similar to
what he was wearing. After watching television, accused-appellant kissed
Rosilyn on the lips, inserted his tongue in her mouth and fondled her
breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and
placed a pillow under her back. He inserted his finger in her vagina and
mounted himself between her legs with his hands rested on her sides. After
that, he lifted his shirt, then pointed and pressed his penis against her
vagina.Accused-appellant made thrusting motions, which caused Rosilyn
pain. Thereafter, accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching
her sex organ, but she did not wake up. When she woke up later, she found
P5,000.00 on the table, and she gave this to Simplicio when he came to fetch
her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at
around 7:00 p.m.Accused-appellant was about to leave, so he told them to
come back later that evening. The two did not return.
The following day, Rosilyn ran away from home with the help of Yamie
Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City
Police, where she executed a sworn statement against Simplicio
Delantar. Rosilyn was thereafter taken to the custody of the Department of
Social Welfare and Development (DSWD). The National Bureau of
Investigation (NBI) conducted an investigation, which eventually led to the
filing of criminal charges against accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas
at Camp Crame.The examination yielded the following results:
EXTERNAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent female subject. Breasts are
conical with pinkish brown areola and nipples from which no secretions could
be pressed out. Abdomen is flat and soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and
coaptated with the pinkish brown labia minora presenting in between. On
separating the same disclosed an elastic, fleshy type hymen, with shallow
healed laceration at 3 o'clock position and deep healed laceration at 8 o'clock
position. External vaginal orifice offers moderate resistance to the
introduction of the examining index finger and the virgin sized vaginal
167
speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm
and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.[9]
During the trial, accused-appellant raised the defense of denial and
alibi. He claimed that it was his brother, Dominador Jun Jalosjos, whom
Rosilyn had met, once at accused-appellants Dakak office and twice at the
Ritz Towers. Accused-appellant insisted that he was in the province on the
dates Rosilyn claimed to have been sexually abused. He attributed the filing
of the charges against him to a small group of blackmailers who wanted to
extort money from him, and to his political opponents, particularly Ex-
Congressman Artemio Adaza, who are allegedly determined to destroy his
political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he
was on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to
Dipolog. He stayed in Dipolog until June 18, 1996. He submitted in evidence
airline ticket no. 10792424,[10] showing that he was on board Flight PR 165;
the said flights passengers manifest,[11] where the name JALOSJOS/RM/MR
appears; and photographs showing accused-appellants constituents
welcoming his arrival and showing accused-appellant talking with former
Mayor Hermanico Carreon and Fiscal Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took
the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met
Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after
talking to his representatives, he proceeded to his residence known as
Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent
the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay
San Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30
p.m. Then, together with some friends, he visited the Rizal Shrine and the
Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the Barangay
House in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-
wide consultation with his political leaders at the Blue Room of Dakak, which
lasted till the afternoon. In the evening, he went home and slept in the
Barangay House.
On July 1, 1996, he attended the whole day celebration of Dipolog
Day. He spent the night in the Barangay House.
On July 2, 1996, he attended the inauguration of the reception hall of
Dakak Beach Resort.The blessing ceremony was officiated by Assistant
Parish Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the
3rd Engineering District of Dapitan City. After the mass, he visited the
Jamboree site in Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996,
there was never an instance when he went to Manila until July 9, 1996, when
he attended a conference called by the President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the
5:00 a.m. flight of PAL from Manila to Dumaguete City. From there, he was
flown by a private plane to Dipolog, where he stayed until the President of
the Philippines arrived.
To buttress the theory of the defense, Dominador Jun Jalosjos testified
that he was the one, and not accused-appellant, whom Rosilyn met on three
occasions. These occurred once during the first week of May 1996, at
accused-appellants Dakak office where Rosilyn and Simplicio Delantar were
introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he
interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the
proposed entry of Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances
were limited to interviewing her and assessing her singing and modeling
potentials. His testimony made no mention of any sexual encounter with
Rosilyn.
After trial, the court rendered the assailed decision, the dispositive
portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as
follows:
1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven
beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y
GARCIA, as principal in the two (2) counts of statutory rape defined and
penalized under Article 335 of the Revised Penal Code. He is hereby
declared CONVICTED in each of these cases.
2. Accordingly, he is sentenced to:
2a. suffer the penalty of reclusion perpetua in each of these cases.
168
2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and
96-1993, the prosecution has proven beyond reasonable doubt the guilt of
the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of
acts of lasciviousness defined under Article 336 of the Revised Penal Code
and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child
Abuse Law. He is hereby declared CONVICTED in each of these cases;
4. Accordingly he is sentenced to:
4.a. suffer in each of the cases an indeterminate prison term of from eight (8)
years, eight (8) months and one (1) day of prision mayor in its medium
period, as maximum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal in its medium period, as maximum;
4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of
TWENTY THOUSAND (P20,000.00) as moral damages for each of the
cases;
5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and
96-1998, the prosecution has failed to prove beyond reasonable doubt the
guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts
of lasciviousness. Therefore, on the ground of reasonable doubt, the
accused in these cases is hereby ACQUITTED.
SO ORDERED.[12]
Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE
ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE
COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF
INCONSISTENCIES AND UNTRUTHS.
B.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE
SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY
THE PRIVATE COMPLAINANT.
C.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE
SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO
IDENTIFY THE ACCUSED-APPELLANT.
D.
THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE
PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE
YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY
TOOK PLACE.
E.
THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE
WAS COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13]
In this jurisdiction, the testimony of the private complainant in rape
cases is scrutinized with utmost caution. The constitutional presumption of
innocence requires no less than moral certainty beyond any scintilla of
doubt. This applies with more vigor in rape cases where the evidence for the
prosecution must stand or fall on its own merits and is not allowed to draw
strength from the weakness of the evidence of the defense. As an inevitable
consequence, it is the rape victim herself that is actually put on trial. The
case at bar is no exception. Bent on destroying the veracity of private
complainants testimony, the errors assigned by accused-appellant,
particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos.
96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, for acts of
lasciviousness. According to him, the fact that the trial court sustained his
defense of alibi in the said cases only shows that Rosilyn concocted her
stories and the rest of her testimony ought not to be believed. Stated
differently, accused-appellant urges the application of the doctrine of "falsus
in uno falsus in omnibus (false in part, false in everything).[14]
The contention is without merit. Falsus in uno falsus in omnibus is not
an absolute rule of law and is in fact rarely applied in modern
jurisprudence.[15] Thus, in People v. Yanson-Dumancas,[16] citing People v. Li
Bun Juan,[17] this Court held that:
... In this connection it must be borne in mind that the principle falsus in uno
falsus in omnibus is not an absolute one, and that it is perfectly reasonable to
believe the testimony of a witness with respect to some facts and disbelieve
169
it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-
3223, the following was quoted with approval by the Court of Appeals from 1
Moore on Facts, p. 23:
18. Testimony may be partly credited and partly rejected. --- Trier of facts are
not bound to believe all that any witness has said; they may accept some
portions of his testimony and reject other portions, according to what seems
to them, upon other facts and circumstances to be the truth Even when
witnesses are found to have deliberately falsified in some material
particulars, the jury are not required to reject the whole of their
uncorroborated testimony, but may credit such portions as they deem worthy
of belief. (p. 945)[18]
Being in the best position to discriminate between the truth and the
falsehood, the trial court's assignment of values and weight on the testimony
of Rosilyn should be given credence.Significantly, it should be borne in mind
that the issue at hand hinges on credibility, the assessment of which, as oft-
repeated, is best made by the trial court because of its untrammeled
opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant,
the trial court stated:
Guided by the foregoing principles, this court found no reason why it should
not believe Rosilyn when she claimed she was raped. Testimonies of rape
victims especially those who are young and immature deserve full credence
(People v. Liquiran, 228 SCRA 62 (1993) considering that no woman would
concoct a story of defloration, allow an examination of her private parts and
thereafter allow herself to be perverted in a public trial if she was not
motivated solely by the desire to have the culprit apprehended and
punished. (People v. Buyok, 235 SCRA 622 [1996]).
When asked to describe what had been done to her, Rosilyn was able to
narrate spontaneously in detail how she was sexually abused. Her testimony
in this regard was firm, candid, clear and straightforward, and it remained to
be so even during the intense and rigid cross-examination made by the
defense counsel.[19]
Accused-appellant next argues that Rosilyns direct and redirect
testimonies were rehearsed and lacking in candidness. He points to the
supposed hesitant and even idiotic answers of Rosilyn on cross and re-cross
examinations. He added that she was trained to give answers such as, Ano
po?, Parang po, Medyo po, and Sa tingin ko po.
Accused-appellants arguments are far from persuasive. A reading of the
pertinent transcript of stenographic notes reveals that Rosilyn was in fact firm
and consistent on the fact of rape and lascivious conduct committed on her
by accused-appellant. She answered in clear, simple and natural words
customary of children of her age. The above phrases quoted by accused-
appellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor
General, typical answers of child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on
the witness stand, may have given some ambiguous answers, they refer
merely to minor and peripheral details which do not in any way detract from
her firm and straightforward declaration that she had been molested and
subjected to lascivious conduct by accused-appellant. Moreover, it should be
borne in mind that even the most candid witness oftentimes makes mistakes
and confused statements.At times, far from eroding the effectiveness of the
evidence, such lapses could, indeed, constitute signs of veracity.[20]
Then, too, accused-appellant capitalizes on the alleged absence of any
allegation of rape in the five (5) sworn statements executed by Rosilyn as
well as in the interviews and case study conducted by the representatives of
the DSWD. In particular, accused-appellant points to the following
documents:
(1) Sworn statements dated August 22 and 26, 1996, executed
before SPO5 Milagros A. Carrasco of the Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996,
executed before NBI Agents Cynthia L. Mariano and
Supervising NBI Agent Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30,
1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that rape is a technical term, the precise and
accurate definition of which could not have been understood by
Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her
the intricacies of rape, she expectedly could not distinguish in her affidavits
and consequently disclose with proficient exactitude the act or acts of
accused-appellant that under the contemplation of law constitute the crime of
rape. This is especially true in the present case where there was no
exhaustive and clear-cut evidence of full and complete penetration of the
victims vagina. It may well be that Rosilyn thought, as any layman would
probably do, that there must be the fullest penetration of the victims vagina to
qualify a sexual act to rape.
In People v. Campuhan,[21] we ruled that rape is consummated by the
slightest penetration of the female organ, i.e., touching of either labia of the
pudendum by the penis. There need not be full and complete penetration of
the victims vagina for rape to be consummated. There being no showing that
170
the foregoing technicalities of rape was fully explained to Rosilyn on all those
occasions that she was interviewed by the police, the NBI agents and DSWD
social workers, she could not therefore be expected to intelligibly declare that
accused-appellants act of pressing his sex organ against her labia without
full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is
cited plus the courts mention of the jurisprudence on this issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your
vagina, your back was rested on a pillow and your legs were spread
wide apart, what else did he do?
A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang
ari niya sa ari ko.(underscoring supplied)
Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else
did he do?
A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya
sa ari ko. (underscoring supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can be committed even
without full penetration of the male organ into the vagina of the woman. It is
enough that there be proof of the entrance of the male organ within the labia
of the pudendum of the female organ. (People vs. Mangalino, 182 SCRA
329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA
393).Penetration of the penis by entry into the lips of the female organ
suffices to warrant a conviction. (People vs. Galimba, G.R. No. 111563-64,
February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with
the testimony of Rosilyn that the accused pressed against (idiniin) and
pointed to (itinutok) Rosilyns vagina his sexual organ on two (2) occasions,
two (2) acts of rape were consummated.[22]
Moreover, it must be borne in mind that Rosilyns purpose in executing
the affidavits on August 22 and 26, 1996 before the Pasay City Police was to
charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the
trial court, it is preposterous to expect Rosilyn to make an exhaustive
narration of the sexual abuse of accused-appellant when he was not the
object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11
and 19, 1996, concerned mainly the identification of pictures. There was thus
no occasion for her to narrate the details of her sexual encounter with
accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to
state that said meetings with Rosilyn were specially focused on the emotional
and psychological repercussions of the sexual abuse on Rosilyn, and had
nothing to do with the legal actions being prepared as a consequence
thereof. Thus, the documents pertaining to said interviews and studies
cannot be relied upon to reveal every minute aspect of the sexual
molestations complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns
testimony, if at all they existed, cannot diminish the probative value of
Rosilyns declarations on the witness stand. The consistent ruling of this
Court is that, if there is an inconsistency between the affidavit of a witness
and her testimonies given in open court, the latter commands greater weight
than the former.[23]
In the third assigned error, accused-appellant attempts to impress upon
this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her
abuser only because that was the name given to her by the person to whom
she was introduced. That same name, accused-appellant claims, was merely
picked up by Rosilyn from the name plate, plaque, and memo pad she saw
on accused-appellants office desk. Accused-appellant presented his brother,
Dominador Jun Jalosjos, in an attempt to cast doubt on his culpability. It was
Dominador Jun Jalosjos who allegedly met and interviewed Rosilyn at the
Dakak office. In advancement of this theory, accused-appellant cites the fact
that out of a total of 16 pictures presented to Rosilyn for identification, she
picked up only 4, which depict Dominador Jun Jalosjos. In the same vein,
accused-appellant claims that the resulting cartographic sketch from the
facial characteristics given by Rosilyn to the cartographer, resembles the
facial appearance of Dominador Jun Jalosjos.Accused-appellant also points
out that Rosilyn failed to give his correct age or state that he has a mole on
his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that
Rosilyn positively and unhesitatingly identified accused-appellant at the
courtroom. Such identification during the trial cannot be diminished by the
fact that in her sworn statement, Rosilyn referred to accused-appellant as her
abuser based on the name she heard from the person to whom she was
introduced and on the name she saw and read in accused-appellants
office. Verily, a persons identity does not depend solely on his name, but also
on his physical features. Thus, a victim of a crime can still identify the culprit
even without knowing his name. Similarly, the Court, in People v.
Vasquez,[24] ruled that:
It matters little that the eyewitness initially recognized accused-appellant only
by face [the witness] acted like any ordinary person in making inquiries to
find out the name that matched [appellants] face. Significantly, in open court,
he unequivocally identified accused-appellant as their assailant.
171
 Even in the case of People v. Timon,[25] relied upon by accused-
appellant to discredit his identification, this Court said that even assuming
that the out-of-court identification of accused-appellant was defective, their
subsequent identification in court cured any flaw that may have initially
attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant
out of the 16 pictures shown to her does not foreclose the credibility of her
unqualified identification of accused-appellant in open court. The same holds
true with the subject cartographic sketch which, incidentally, resembles
accused-appellant. As noted by the trial court, accused-appellant and his
brother Dominador Jalosjos have a striking similarity in facial
features. Naturally, if the sketch looks like Dominador, it logically follows that
the same drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accused-
appellant and to state that he has a mole on the lower right jaw, cannot affect
the veracity of accused-appellants identification. At a young age, Rosilyn
cannot be expected to give the accurate age of a 56 year-old person. As to
accused-appellants mole, the Solicitor General is correct in contending that
said mole is not so distinctive as to capture Rosilyns attention and
memory. When she was asked to give additional information about accused-
appellant, Rosilyn described him as having a prominent belly. This, to our
mind, is indeed a more distinguishing feature that would naturally catch the
attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the
words idinikit, itinutok, and idiniin-diin, which Rosilyn used to describe what
accused-appellant did to her vagina with his genitals, do not constitute
consummated rape. In addition, the defense argued that Rosilyn did not
actually see accused-appellants penis in the supposed sexual contact. In
fact, they stressed that Rosilyn declared that accused-appellants semen
spilled in her thighs and not in her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v.
Campuhan, argued that, assuming that his penis touched or brushed
Rosilyns external genitals, the same is not enough to establish the crime of
rape.
True, in People v. Campuhan,[26] we explained that the phrase, the mere
touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge, means that the act of
touching should be understood here as inherently part of the entry of the
penis into the labia of the female organ and not mere touching alone of the
mons pubis or the pudendum. We further elucidated that:
The pudendum or vulva is the collective term for the female genital organs
that are visible in the perineal area, e.g., mons pubis, labia majora, labia
minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is instantly visible
within the surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered with hair follicles
and is pigmented, while the inner surface is a thin skin which does not have
any hairs but has many sebaceous glands. Directly beneath the labia majora
is the labia minora. Jurisprudence dictates that the labia majora must be
entered for rape to be consummated, and not merely for the penis to stroke
the surface of the female organ. Thus, a grazing of the surface of the female
organ or touching the mons pubis of the pudendum is not sufficient to
constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum
by the penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.[27]
In the present case, there is sufficient proof to establish that the acts of
accused-appellant went beyond strafing of the citadel of passion or shelling
of the castle of orgasmic potency, as depicted in the Campuhan case, and
progressed into bombardment of the drawbridge [which] is invasion
enough,[28] there being, in a manner of speaking, a conquest of the fortress of
ignition.When the accused-appellant brutely mounted between Rosilyns
wide-spread legs, unfetteredly touching, poking and pressing his penis
against her vagina, which in her position would then be naturally wide open
and ready for copulation, it would require no fertile imagination to belie the
hypocrisy claimed by accused-appellant that his penis or that of someone
who looked like him, would under the circumstances merely touch or brush
the external genital of Rosilyn. The inevitable contact between accused-
appellants penis, and at the very least, the labia of the pudendum of Rosilyn,
was confirmed when she felt pain inside her vagina when the idiniin part of
accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did
he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell
the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
172
Q. And, after lifting your shirt, what else did he do? A. In front of my vagina, sir.
A. He spread my legs sir. Q. In front of your vagina? O.K.; will you tell the Court the position?
Q. And, after spreading your legs apart; what did he do? Will you describe the position of Congressman Jalosjos when he was
doing that. Idinikit-dikit niya sa ari ko?
A. After that, he lifted his shirt and held his penis.
A. Ide-demonstrate ko po ba?
Q. And while he was holding his penis; what did he do?
FISCAL ZUNO:
A. He pressed it in my vagina.
Q. Can you demonstrate?
ATTY. FERNANDEZ:
xxxxxxxxx
May we request that the vernacular be used?
A. He was holding me like this with his one hand; and was holding his
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko. penis while his other hand, or his free hand was on the bed.
PROS. ZUNO: xxxxxxxxx
May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari PROS. ZUNO:
ko, be incorporated?
Now, according to you, you dont know how to say it; or what was done to
Q. And while he was doing that; according to you, idinikit-dikit niya ang ari you. Now, will you tell the Court how can you describe what was
niya sa ari mo; what did you feel? done to you?
A. I was afraid and then, I cried. A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito.
Q. Will you tell the Court why you felt afraid and why you cried? Q. O.K. you said itinutok niya ito; what else did he do?
A. Because I was afraid he might insert his penis into my vagina. PROS. ZUNO:
Q. And, for how long did Congressman Jalosjos perform that act, which She is now trying to describe.
according to you, idinikit-dikit niya yong ari niya sa ari ko?
COURT:
COURT:
Translate.
Place the Tagalog words, into the records.
A. He seems to be parang idinidiin po niya.
A. Sandali lang po yon.
Q. Now, what did you feel, when according to you; as I would
Q. What part of your vagina, or ari was being touched by the ari or penis? quote: parang idinidiin niya?
xxxxxxxxx A. Masakit po.
Q. You said that you felt I withdraw that question. How did you know that Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
Congressman Jalosjos was doing, idinikit-dikit niya yung ari niya sa
ari ko? COURT:
A. Because I could feel it, sir. Q. Sabi mo itinutok. Nakita mo bang itinutok?
Q. Now, you said you could feel it. What part of the vagina in what part of A. I saw him na nakaganuon po sa ano niya.
your vagina was Congressman Jalosjos, according to you, idinikit-
dikit niya yong ari niya sa ari mo? PROS. ZUNO:

173
Q. O.K., clarify. You said nakaganuon siya what do you mean (Naaawa po ako sa sarili ko.)
by nakaganuon siya?
x x x x x x x x x.
A. He was holding his penis, and then, that was the one which
he itinutok sa ari ko. (Emphasis supplied.)[29]

PROS. ZUNO: Even the July 20, 1996 encounter between Rosilyn and accused-
appellant would not tax the sketchy visualization of the nave and uninitiated
Q. And, when you said idinidiin po niya; to which you are referring? What to conclude that there was indeed penile invasion by accused-appellant of
is this idinidiin niya? Rosilyns labia. On that occasion, accused-appellant was similarly ensconced
between the parted legs of Rosilyn, except that, this time, Rosilyn was
A. Idinidiin niya ang ari niya sa ari ko. conveniently rested on, and elevated with a pillow on her back while
Q. And what did you feel when you said: he was idinidiin niya ang ari niya accused-appellant was touching, poking and pressing his penis against her
sa ari ko? vagina. Topped with the thrusting motions employed by accused-appellant,
the resulting pain felt by Rosilyn in her sex organ was no doubt a
A. Masakit po. consequence of consummated rape.
COURT: The pertinent portions of Rosilyns account of the July 20, 1996 incident
is as follows:
The answer is masakit po.
PROS. ZUNO:
Proceed.
xxxxxxxxx
PROS. ZUNO:
Q. The moment when Cong. Jalosjos inserted his finger into your vagina,
Q. Where did you feel the pain?
what was your position?
A. Inside my ari po. (Sa loob po ng ari ko.)
INTERPRETER:
xxxxxxxxx
The witness is asking he (sic) she has to demonstrate?
PROS. ZUNO:
FISCAL ZUNO:
Q. And then, after that, what else did he do
Q. Ipaliwanag mo lang?
A. After that, he touched my breast, sir.
A. My back was rested on a pillow and my legs were spread apart.
Q. And, after touching your breast, what did he do?
Q. You said that when Congressman Jalosjos inserted his finger into your
A. And after that I felt that he was (witness demonstrating to the court, vagina, your back was rested on a pillow and your legs were spread
with her index finger, rubbing against her open left palm) wide apart, what else did he do?

Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
xxxxxxxxx
A. I put down my clothes and then, I cried myself to sleep, sir.
A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang
ari niya sa ari ko.
Q. And what did you feel when he was doing that which according to you
and I would quote in Tagalog: idinikit-dikit niya yong ari niya sa ari
ko?

Q. Why did you cry? Will you tell the court, why did you cried after putting A. I was afraid sir.
down your clothes? Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else
A. Because I felt pity for myself. did he do?

174
 A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya
sa ari ko.
Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko;
at idiniin-diin niya yong ari niya sa ari ko; Now, while he was doing
that act, what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread
apart; he was in-between them, and doing an upward and downward
movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long did Congressman Jalosjos perform that act, pushing or
pumping movement while his penis, or ang ari niya ay nakatutok at
idinidiin-diin yong ari niya sa ari mo?
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that
movement, pushing, or pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
xxxxxxxx x.[30]
The childs narration of the rape sequence is revealing. The act
of idinikit-dikit niya was followed by itinutok niya xxx at idiniin-diin
niya. The idiniin-diin niya was succeeded by Masakit po. Pain inside her ari is
indicative of consummated penetration.
The environmental circumstances displayed by the graphic narration of
what took place at the appellants room from June 14 to June 16 and June 21
to June 22, 1996 are consistent with the complainants testimony which
shows that rape was legally consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by
putting her legs close together --- which, although futile, somehow made it
inconvenient, if not difficult, for the accused-appellant to attempt
penetration. On the other hand, the ease with which accused-appellant
herein perpetrated the sexual abuse, not to mention the absence of time
constraint, totally distinguishes the instant case from Campuhan. Here, the
victim was passive and even submissive to the lecherous acts of accused-
appellant. Thus, even assuming that his penis then was flaccid, his act of
holding, guiding and assisting his penis with his one hand, while touching,
poking and pressing the same against Rosilyn's vagina, would surely result in
even the slightest contact between the labia of the pudendum and accused-
appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the
circumstances of the alleged sexual assault at bar, the defense argued that it
is highly improbable and contrary to human experience that accused-
appellant exercised a Spartan-like discipline and restrained himself from fully
consummating the sexual act when there was in fact no reason for him not to
do so. In the same light, the defense likewise branded as unnatural the
testimony of Rosilyn that accused-appellant contented himself with rubbing
his penis clipped between her thighs until he reached orgasm and desisted
from fully penetrating her, when Rosilyn was then entirely at his disposal.
The defense seems to forget that there is no standard form of behavior
when it comes to gratifying ones basic sexual instinct. The human sexual
perversity is far too intricate for the defense to prescribe certain forms of
conduct. Even the word perverse is not entirely precise, as what may be
perverse to one may not be to another. Using a child of tender years who
could even pass as ones granddaughter, to unleash what others would call
downright bestial lust, may be utterly nauseating and repulsive to some, but
may peculiarly be a festive celebration of salacious fantasies to others. For
all we know, accused-appellant may have found a distinct and complete
sexual gratification in such kind of libidinous stunts and maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer
period penetrated Rosilyn for fear of perpetrating his name through a child
from the womb of a minor; or because of his previous agreement with
his suking bugaw, Simplicio Delantar, that there would be no penetration,
otherwise the latter would demand a higher price. This may be the reason
why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is
bad if accused-appellant inserts his penis into her sex organ, while at the
same time ordering her to call him if accused-appellant would penetrate
her. Such instance of penile invasion would prompt Simplicio to demand a
higher price, which is, after all, as the Solicitor General calls it, the peculiarity
of prostitution.
The defense contends that the testimony of Rosilyn that accused-
appellant ejaculated on her thighs and not in her vagina, only proves that
there was no rape. It should be noted that this portion of Rosilyns testimony
refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not
the rape charges. In any event, granting that it occurred during the twin
instances of rape on June 18 and July 20, 1996, the ejaculation on the
victims thighs would not preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not
see the penis of accused-appellant. As can be gleaned from the above-
quoted portions of the transcripts, Rosilyn unequivocally testified that
accused-appellant held his penis then poked her vagina with it. And even if
175
she did not actually see accused-appellants penis go inside her, surely she
could have felt whether it was his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve
(12) years of age at the time the rape complained of occurred. To bolster the
declaration of Rosilyn that she was then eleven years old, the prosecution
presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11,
1985;[31]
(2) Rosilyns baptismal certificate showing her birthday as May 11,
1985;[32]
(3) Master List of Live Births stating that Ma. Rosilyn Delantar was
born on May 11, 1985 to Librada Telen as the mother;[33]
(4) Marked pages of the Cord Dressing Room Book;[34]
(5) Summary of the Cord Dressing Book, showing her birthday as
May 11, 1985 and her parents (Librada Telen and Simplicio
Delantar) patient file number (39-10-71);[35]
(6) Record of admission showing her parents patient number (39-
10-71) and confinement at the Jose Fabella Memorial Hospital
from May 5-14, 1985.[36]
It is settled that in cases of statutory rape, the age of the victim may be
proved by the presentation of her birth certificate. In the case at bar,
accused-appellant contends that the birth certificate of Rosilyn should not
have been considered by the trial court because said birth certificate has
already been ordered cancelled and expunged from the records by the
Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-
81893, dated April 11, 1997.[37]However, it appears that the said decision has
been annulled and set aside by the Court of Appeals on June 10, 1999, in
CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed
to this Court by petition for review, docketed as G.R. No. 140305. Pending
the final outcome of that case, the decision of the Court of Appeals is
presumed valid and can be invoked as prima facie basis for holding that
Rosilyn was indeed eleven years old at the time she was abused by
accused-appellant.
However, even assuming the absence of a valid birth certificate, there is
sufficient and ample proof of the complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In
People v. Liban,[38]we ruled that the birth certificate, or in lieu thereof, any
other documentary evidence that can help establish the age of the victim,
such as the baptismal certificate, school records, and documents of similar
nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal
certificates of Rosilyn are inadmissible to prove her age, the Master List of
Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial
Hospital where Rosilyn was born are sufficient evidence to prove that her
date of birth was May 11, 1985. These documents are considered entries in
official records, admissible as prima facie evidence of their contents and
corroborative of Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:
Entries in official records. --- Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty especially enjoined by law, are prima
facie evidence of the facts therein stated.
In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the
requisites for the application of the foregoing rule, thus:
(a) That the entry was made by a public officer, or by another
person specially enjoined by law to do so;
(b) That it was made by the public officer in the performance of his
duties or by such other person in the performance of a duty
specially enjoined by law; and
(c) That the public office or the other person had sufficient
knowledge of the facts by him stated, which must have been
acquired by him personally or through official information.
In order for a book to classify as an official register and admissible in
evidence, it is not necessary that it be required by an express statute to be
kept, nor that the nature of the office should render the book indispensable; it
is sufficient that it be directed by the proper authority to be kept. Thus, official
registers, though not required by law, kept as convenient and appropriate
modes of discharging official duties, are admissible.[40]
Entries in public or official books or records may be proved by the
production of the books or records themselves or by a copy certified by the
legal keeper thereof.[41] It is not necessary to show that the person making
the entry is unavailable by reason of death, absence, etc., in order that the
entry may be admissible in evidence, for his being excused from appearing in
court in order that public business be not deranged, is one of the reasons for
this exception to the hearsay rule.[42]
Corollary thereto, Presidential Decree No. 651, as amended by P.D. No.
766,[43] mandates hospitals to report and register with the local civil registrar
the fact of birth, among others, of babies born under their care. Said Decree
imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00
176
or imprisonment of not less than three (3) months nor more than six (6)
months, or both, in the discretion of the court, in case of failure to make the
necessary report to the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with
Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing
Room Book where the fact of birth, name of the mother and other related
entries are initially recorded, as well as the Master List of Live Births of the
hospital, are considered entries in official record, being indispensable to and
appropriate modes of recording the births of children preparatory to
registration of said entries with the local civil registrar, in compliance with a
duty specifically mandated by law.
It matters not that the person presented to testify on these hospital
records was not the person who actually made those entries way back in
1985, but Amelita Avenante, the records custodian of the hospital in 1995. To
reiterate, these records may be proved by the presentation of the record itself
or by a certified copy or the legal keeper thereof. Proof of the unavailability of
the person who made those entries is not a requisite for their
admissibility. What is important is that the entries testified to by Avenante
were gathered from the records of the hospital which were accomplished in
compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live
Births of the hospital are admissible as evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth
and baptismal certificates of Rosilyn. They establish independent and
material facts prepared by unbiased and disinterested persons under
environmental circumstances apart from those that may have attended the
preparation of the birth and baptismal certificates. Hence, these hospital
records, to reiterate, are sufficient to support the testimony of Rosilyn as to
her age.
Consequently, the testimony of Simplicio Delantar that the entries in the
birth certificate of Rosilyn are false and that he merely made them up,
particularly her date of birth, was correctly disregarded by the trial court. It
should be noted that the criminal charges for child abuse filed by Rosilyn
against him was the direct cause of his incarceration. This raises a possibility
that Simplicio falsely testified in the present case, to get even with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria
Binay and Angelito Intruzo because the defense failed to prove that they
were knowledgeable as to the circumstances of Rosilyns birth. Their
testimonies consist mainly of observations tending to show that Rosilyns
appearance belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on
June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994,
96-1995, 96-1996, and 96-1997, respectively), the trial court acquitted
accused-appellant on the ground of reasonable doubt as the defense was
able to prove that accused-appellant was not in Manila but either in Dipolog
or Dapitan City at the time the lascivious acts were supposedly
committed. The evidence of the defense established that accused-appellant
flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of
lasciviousness allegedly committed both in the early mornings of June 19
and July 21, 1996, Rosilyn merely testified that she felt somebody touching
her private part but failed to identify the person who was performing those
lecherous acts as she was too sleepy to wake up. Hence, accused-appellant
was likewise acquitted in these cases on the ground of reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the
morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and
21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20,
1996, accused-appellant failed to account for his whereabouts. A careful
review of the pertinent transcript of stenographic notes reveals that accused-
appellant did not give any testimony as to where he was at the time these
crimes were committed. Clearly, therefore, the trial court correctly
disregarded his unsubstantiated defense of denial, which cannot prevail over
his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the
morning of June 16, 1996, accused-appellant claimed that it was impossible
for him to have committed the same because he flew to Dipolog on that
day. The records disclose, however, that accused-appellants flight was at
9:40 a.m. The possibility, therefore, of accused-appellants having performed
the lascivious acts on the victim before he went off to the airport is not at all
precluded. For his failure to prove the physical impossibility of his presence
at the Ritz Towers in the morning of June 16, 1996, when the sexual abuse
of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children, whether male or
female, who for money or profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
xxx xxx xxx
177
(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subjected to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; x x x . (Emphasis supplied.)
In People v. Optana,[44] the Court, citing the case of People v.
Larin,[45] explained the elements of the offense of violation of Section 5 (b) of
R.A. 7610, or the Child Abuse Law, as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected
other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
A child is deemed exploited in prostitution or subjected to other sexual
abuse, when the child indulges in sexual intercourse or lascivious conduct (a)
for money, profit, or any other consideration; or (b) under the coercion or
influence of any adult, syndicate or group. Under RA 7610, children are
persons below eighteen years of age or those unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of their age or mental disability or condition.
Lascivious conduct is defined under Article XIII, Section 32 of the
Implementing Rules and Regulation of R.A. 7610, as follows:
[T]he intentional touching, either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks, or the introduction of any object
into the genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse
or gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.
In the case at bar, accused-appellants acts of kissing Rosilyn on the
lips, fondling her breast, inserting his finger into her vagina and placing his
penis between her thighs, all constitute lascivious conduct intended to arouse
or gratify his sexual desire. Hence, the trial court correctly convicted
accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child
Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990,
96-1992, and 96-1993, charging him with the above-described lascivious
acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child
Abuse Law, where the victim is below 12 years of age, is reclusion
temporal in its medium period.
The records show that on at least nine (9) separate occasions, the
accused-appellant inserted his finger into the complainants vagina. These
insertions took place in 1996. A year later, Congress enacted Republic Act
No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it
indicates state policy on rape. The Revised Penal Code is now amended to
read as follows:
Article 266-A. Rape; When and How Committed. Rape is committed
1. By a man who have carnal knowledge of a woman under any of the
following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.
2. By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another persons mouth or anal orifice or any instrument or object,
into the genital or anal orifice of another person. (Emphasis supplied.)
Indicative of the continuing state policy towards rape, the Anti-Rape Law
of 1997 now classifies the crime as an offense against persons. Any public
prosecutor, not necessarily the victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances,
which are now set forth and contained in Article 266-B of the Revised Penal
Code, have also been increased.
Considering that there are neither mitigating nor aggravating
circumstance, the trial court correctly imposed on accused-appellant the
maximum penalty of fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal, which is within the medium period of reclusion
temporal medium, pursuant to our ruling in Dulla v. Court of
178
Appeals.[46]Notwithstanding that R.A. 7610 is a special law, accused-
appellant may enjoy a minimum term of the indeterminate sentence to be
taken within the range of the penalty next lower to that prescribed by the
Code.[47] However, the trial court erroneously fixed the minimum term of the
indeterminate sentence at eight (8) years, eight (8) months and one (1) day
of prision mayor in its medium period. In the aforesaid case of Dulla,[48] we
held that the penalty next lower in degree to reclusion temporal medium
is reclusion temporal minimum, the range of which is from twelve (12) years
and one (1) day to fourteen (14) years and eight (8) months. Hence, for
violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall
suffer the indeterminate sentence of twelve years (12) and one (1) day
of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal as maximum.
At the time of commission of the crimes complained of herein in 1996,
statutory rape was penalized under Section 11 of R.A. 7659, which amended
Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua. xxx.
In statutory rape, mere sexual congress with a woman below twelve
years of age consummates the crime of statutory rape regardless of her
consent to the act or lack of it. The law presumes that a woman of tender age
does not possess discernment and is incapable of giving intelligent consent
to the sexual act. Thus, it was held that carnal knowledge of a child below
twelve years old even if she is engaged in prostitution is still considered
statutory rape.The application of force and intimidation or the deprivation of
reason of the victim becomes irrelevant. The absence of struggle or outcry of
the victim or even her passive submission to the sexual act will not mitigate
nor absolve the accused from liability.[49]
In the case at bar, the prosecution established beyond reasonable doubt
that accused-appellant had carnal knowledge of Rosilyn. Moreover, the
prosecution successfully proved that Rosilyn was only eleven years of age at
the time she was sexually abused. As such, the absence of proof of any
struggle, or for that matter of consent or passive submission to the sexual
advances of accused-appellant, was of no moment. The fact that accused-
appellant had sexual congress with eleven year-old Rosilyn is sufficient to
hold him liable for statutory rape, and sentenced to suffer the penalty
of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages
awarded by the trial court for each count of acts of lasciviousness under
Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to
P50,000.00.[50] On the other hand, the award of the amount of P50,000.00 as
moral damages for each count of statutory rape was correct.
In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v.
Gementiza,[53] we held that the indemnity authorized by our criminal law as
civil indemnity ex delicto for the offended party, in the amount authorized by
the prevailing judicial policy and aside from other proven actual damages, is
itself equivalent to actual or compensatory damages in civil law. Said civil
indemnity is mandatory upon finding of the fact of rape; it is distinct from and
should not be denominated as moral damages which are based on different
jural foundations and assessed by the court in the exercise of sound judicial
discretion.[54] Hence, accused-appellant should be ordered to pay the
offended party another P50,000.00 as civil indemnity for each count of rape
and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati,
Branch 62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-
appellant Romeo Jalosjos guilty beyond reasonable doubt of two counts of
statutory rape, and sentencing him to suffer the penalty of reclusion
perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of
the Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987,
96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding accused-
appellant guilty beyond reasonable doubt of acts of lasciviousness in six
counts, is AFFIRMED with MODIFICATIONS. As modified, accused-
appellant is sentenced to suffer, for each count of acts of lasciviousness, the
indeterminate penalty of twelve years (12) and one (1) day of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal as maximum.Further, accused-appellant is
ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of
P50,000.00 as civil indemnity for each count of statutory rape and acts of
lasciviousness. Finally, the award of moral damages for each count of acts of
lasciviousness is increased to P50,000.00.
SO ORDERED.
179

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 202060 December 11, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
FERDINAND BANZUELA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
The accused-appellant Ferdinand Banzuela (Banzuela) challenges in this
appeal the August 31, 2011 Decision1promulgated by the Court of Appeals in
CA-G.R. CR.-H.C. No. 03868, wherein he was convicted for Rape and Acts
of Lasciviousness.
On July 25, 2003, Banzuela was charged with Rape and Attempted Rape
under Article 335 of the Revised Penal Code in relation to Republic Act No.
76102 before Branch 209, Regional Trial Court (RTC) of Mandaluyong City.
The Information read as follows:
I. For Rape (Criminal Case No. MC03-919-FC-H)
That sometime [i]n February 2003, in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs and by means of force and intimidation, did, then
and there willfully, unlawfully and feloniously have carnal knowledge with
[AAA3], minor (6 years old), against her will and consent, thus debasing
and/or demeaning the intrinsic worth and dignity of the child as a human
being.4
II.For Attempted Rape (Criminal Case No. MC03-918-FC-H)
That sometime in February 2003, in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-
namedaccused, did then and there willfully, unlawfully and feloniously
attempt to have carnal knowledge of [BBB], a girl seven (7)years of age, by
then and there bringing her to a grassy portion of Mandaluyong Cemetery,
made to lie down, undressed her, thus directly by overt acts but failed to
perform all acts of execution when a third party helped the victim to get away
fromthe accused.5
Banzuela pleaded not guilty to both charges during his arraignment on
November 20, 2003.6After the completion of the pre-trial conference on
January22, 2004,7 trial on the merits ensued.
The following narration of facts was made by theRTC and the Court of
Appeals:
Version of the Prosecution
Sometime in February 2003, while six-year old AAA and seven-year old
BBBwere watching TV in AAA’s house,Banzuela approached them and
asked them to go with him to the nearby cemetery. AAA and BBB refused,
but Banzuela carried AAA awaypromptingBBB to followsuit. Upon reaching
the cemetery, Banzuela blindfolded BBB, who thereafter removed the
blindfold and looked for AAA and Banzuela. Meanwhile, Banzuela laid AAA
on a dirty tomb, pulled up her dress, and removed her underwear. He
thereafter removed his shorts and briefs, mounted AAA, kissed her, inserted
his penis in her vagina, and moved his body up and down against the crying
AAA. He threatened to kill her entire family if she ever spokeof the incident.
When BBB finally found them,Banzuela hurriedly pulled up his briefs and
shorts and then ran away. BBB approached AAA and saw that there was
blood on the tomb from AAA’s vagina. They wiped the blood with a banana
leaf, then proceeded to BBB’s house, where AAA washed her bloodied dress
and underwear before going back to AAA’s house.8
After the incident with AAA, Banzuela used the same method on BBB, the
daughter of his mother’s half-brother. One morning in February 2003,
Banzuela asked BBB to go with him to the cemetery. When BBB refused,
Banzuela carriedher out of the house and broughther to the cemetery. BBB
cried, but Banzuela proceeded to layher down on the ground,pulled her dress
up, removed her underwear, and kissed her. However, before Banzuela
could doanything more, a man passed by causing Banzuela to flee the
scene. The man thereafter instructed BBB to go home. Upon reaching
herhouse, Banzuela, who was already there, threatened her against telling
anyone of the incident, otherwise, he wouldkill everyone in their house. 9
AAA, with her mother, submitted herself for examination but both the Initial
Medico-Legal Report10 and the Medico-Legal Report No. M-0914-0311 stated
that AAA was physically in a virgin state, and her hymen "intact."
180
 Version of the Defense
Banzuela denied the accusations against him, claiming that he was working
for at least twelve (12) hours a day at Bestflow Purified Drinking Water
Refilling Station the whole month of February 2003.To prove this,
hesubmitted photocopies of his Daily Time Record (DTR) from November
2002 to February 2003.12 Banzuela added that he did not go to the cemetery
the entire February of 2003.13
Ruling of theRTC
On February 27, 2009, the RTC convicted Banzuela of the crimes of rape of
AAA and attempted rape of BBB. The dispositive portion of the
Decision14 reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as
follows:
1.In Criminal Case No. MC03-919-FC-H, finding accused
FERDINAND BANZUELA guilty beyond reasonable doubt of the
crime of RAPE under Article 335 of the Revised Penal Code, as
amended by R.A. 7659 and is hereby sentenced to suffer the penalty
of RECLUSION PERPETUAand to indemnify the victim, [AAA], of the
sum of FIFTY THOUSAND (₱50,000.00) PESOS as civil
indemnity;[and]
2.In Criminal Case No. MC03-918-FC-H, finding accused
FERDINAND BANZUELA guilty beyond reasonable doubt of the
crime of ATTEMPTED RAPE, and there being no mitigating or
aggravating circumstances and pursuant to Article 51, in relation to
Article 335 of the Revised Penal Code, as amended, is hereby
sentenced to suffer an indeterminate penalty of two (2) years, four
(4) months and one (1) day of pris[i]on correccionalas minimum to
ten years and one (1) day of prision mayoras maximum and to
indemnify the victim, [BBB] of the sum of FIFTEEN THOUSAND
(₱15,000.00) PESOS.15 (Emphases supplied.)
In AAA’s charge of rape, the RTC deemed as insignificant the results of the
medical examination thatAAA’s hymen was still intact. The RTC, invoking
established jurisprudence, said that the mere touching of the labia
consummates rape, and that a broken hymen is not an essential element of
rape.The RTC added that a medical examination, in any event, was not
essential in the prosecution of a rape case, beingmerely corroborative in
character.16
The RTC also found the prosecution to have proved its charge of attempted
rape against BBBas it was clear that Banzuelaintended to have sexual
congress with BBB had he not been unexpectedlydisturbed.17
Anent Banzuela’s defenseof alibi, the RTC did not give it merit for being
weak. The RTC shot down the DTRs Banzuela presented for not having
been authenticated and verified, and for having been weakened by his own
testimony.18
In essence, the RTC decided in favor of the prosecutiondue to AAA’s and
BBB’s testimonies, to wit:
The testimonies of AAA and BBB are worthy of credence as they were
straightforward, spontaneous and "bore the hallmarks of truth."More notable
is that they wereable to withstand the rigors of cross-examination without
wavering or being caught in inconsistencies. Indeed, it defies belief that
these victims, who were below 12 years old, would fabricate a sordid tale of
sexual abuse andindict their very own cousin. Theirtestimonies of the
separate incidents of sexual abuse that happened to them recounted vivid
details that could not have been concocted by girls of tender age. The
testimony of the complainants are consistent, clear and free of serious
contradictions.19
Ruling of the Court of Appeals
Having lost in the RTC, Banzuela appealed to the Court of Appeals,20 which,
on August 31, 2011, rendered a verdict no better than the RTC’s,viz:
FOR THE STATED REASONS, the assailed Decision of the Regional Trial
Court (Branch 209) of Mandaluyong City is AFFIRMED with the following
MODIFICATION:
1.In Criminal Case No. MC03-919-FC-H, Ferdinand Banzuela is
sentenced to suffer the penalty of reclusion perpetuawithout parole
and to indemnify AAA the amounts of ₱75,000.00 as civil indemnity
ex delicto, ₱75,000.00 as moral damages, and ₱25,000.00 as
exemplary damages.
2.In Criminal Case No. MC03-918-FC-H, Ferdinand Banzuela is
found guilty beyond reasonable doubt of acts of lasciviousness and
sentenced to an indeterminate penalty of 12 years, and 1 day of
reclusion temporal, as minimum, to 16 years, reclusion temporal, as
maximum and to indemnify BBB the amounts of ₱25,000.00 as moral
181
 damages and ₱10,000.00 as exemplary damages.21 (Citation
omitted.)
In agreeing with the RTC’s finding of guilt, the Court of Appeals said that
Banzuela failed to destroy the victims’ credibility or taint their straightforward
and categorical testimonies.22
However, the Court of Appeals did not agree with the RTC’s finding that
Banzuela attempted to rape BBB. The Court of Appeals, alluding to
jurisprudence, said that "[a]ttempted rape is committed when the ‘touching’ of
the vagina by the penis is coupled with the intent to penetrate; otherwise,
there can only be acts of lasciviousness."Thus, the Court of Appeals
declared, that because Banzuela’s intent to rape BBB was not clearly
established, he couldonly be convicted of acts of lasciviousness. 23
Issues
Undaunted, Banzuela elevated his case to this Court,24 assigning the same
errors he did before the appellate court, to wit:
ASSIGNMENT OF ERRORS
I
THE COURT A QUOGRAVELY ERRED IN GIVING WEIGHT TO THE
MATERIALLY INCONSISTENT AND INCREDIBLE TESTIMONIES OF THE
PROSECUTION WITNESSES.
II
THE COURT A QUOGRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.25
Banzuela is attacking the credibility of the witnesses for being "highly
inconsistent, unusual, doubtful and thus insufficient to sustain a conviction."
Banzuela claimed that AAA’s testimony was full of inconsistencies and
contradictions, such as how she managed to remove his hand from her
mouth and yet she did not shout for help, how Banzuela managed to
blindfold BBB while still carrying her,and more importantly,how confused she
was as to whether his penis actually penetrated heror simply touched her
groin area. Banzuela argued that the fact that AAA was still a virgin was
confirmedby the medico-legal examination, and as the medico legal officer
said during his testimony, although the consensuswas that it is possible for a
woman to remain a virgin physically despite penetration, he himself has had
no personal encounter of such a case.26
Moreover, Banzuela said, even BBB's actions were highly unusual,
considering the circumstances of her situation. First, Banzuela said, BBB
continued to follow him and AAA despite being blindfolded, instead of turning
back and calling for help. Second,in view of what BBB witnessed happened
to AAA earlier that month, it was contrary to human nature, Banzuela
averred, that she did not resist or try to attract the attention of her neighbors
when he brought her to the cemetery.27
Finally, Banzuela reasoned, the prosecution cannot profit from the weakness
of his defense in light of their failure to establish his guilt beyond reasonable
doubt. Thus, he said, he should be acquitted of the charges against him. 28
Ruling of this Court
We find no reason to reverse the conviction of Banzuela.
In essence, Banzuela’s appeal is hinged on the proposition that the victims
were not credible witnesses for having made several inconsistent statements
when they testified in court.
We do not agree.
Credibility of the witnesses
The guidelines to follow, when this Court is confronted with the issue of
credibility of witnesses on appeal, are established in jurisprudence. In People
v. Sanchez,29 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s evaluation of the
testimony of the witnesses, considering its unique position in directly
observing the demeanor of a witness on the stand. From its vantage point,
the trial court is in the best position to determine the truthfulness of
witnesses.
Second, absent any substantial reason which would justify the reversal of the
RTC’s assessments and conclusions, the reviewing court is generally bound
by the lower court’s findings, particularly when no significant facts and
circumstances, affecting the outcome of the case, are shown to have been
overlooked or disregarded.
182
And third, the rule is even more stringently applied if the CA concurred with
the RTC. (Citations omitted.)
It is well-settled in this jurisdiction that the determination of the credibility of
the witnesses is correctly assigned to the trial court, which is in the best
position to observe the demeanor and bodily movements of all the
witnesses.30Elucidating on the rationale for this rule, this Court, in People v.
Sapigao, Jr.,31 said:
It is well settled that the evaluation of the credibility of witnessesand their
testimonies is a matter best undertaken by the trial court because of its
unique opportunity to observe the witnesses firsthand and to note their
demeanor, conduct, and attitude under grilling examination. These are
important in determining thetruthfulness of witnesses and in unearthing the
truth, especially in the face of conflicting testimonies. For, indeed, the
emphasis, gesture, and inflection of the voice are potent aids in ascertaining
the witness’ credibility, and the trial court has the opportunity and can take
advantage of these aids. These cannot be incorporated in the record so that
all that the appellate court can see are the cold words of the witness
contained in transcript of testimonies with the risk that some of what the
witness actually said may have been lost in the process of transcribing.As
correctly stated by an American court, "There is an inherent impossibility of
determining with any degree of accuracy what credit is justly due to a witness
from merely reading the words spoken by him, even if there were no doubt
as to the identity of the words. However artful a corrupt witness may be,
there is generally, under the pressure of a skillful cross-examination,
something in his manner or bearing on the stand that betrays him, and
thereby destroys the force of his testimony. Many of the real tests of truth by
which the artful witness is exposed in the very nature of things cannot be
transcribed upon the record, and hence they can never be considered by the
appellate court."(Citations omitted.)
In the case at bar, both the RTC and the Court of Appeals found the
testimonies of the witnesses to be credible. Furthermore, this Court’s own
independent examination of the records leads us to the same
conclusion.32 As the Court of Appeals said, both AAA’s and BBB’s
testimonies were straightforward, detailed, and consistent.33 Their credibility
is further strengthened by their clear lack of illmotive to falsify such a charge
against their cousin, who shattered their youth and innocence. 34
The inconsistenciesin AAA’s testimony, as catalogued byBanzuela inhis
brief,35 have no bearing in the determination of his guilt or innocence, and are
too trivial in character to damage AAA’s credibility. The material details of the
rape were clearly established,36 and BBB corroborated AAA’s testimony on
every relevant point. As this Court stated in People v. Saludo 37:
Rape is a painful experience which is oftentimes not remembered in
detail.For such an offense is not analogous to a person’s achievement or
accomplishment as to be worth recalling or reliving; rather, it is something
which causes deep psychological wounds and casts a stigma upon the
victim, scarring her psyche for life and which her conscious and
subconscious mind would opt to forget.Thus, a rape victim cannot be
expected to mechanically keep and then give an accurate account of the
traumatic and horrifying experience she had undergone.(Citation omitted.)
BBB was likewise candid, straightforward, and detailed in her narration of not
only how AAA was raped, but also of how she almost suffered the same fate.
Her allegedunusual actions during AAA’s ordeal, and laterhers, are not
enough to discredit her. It has been established that a victim of a heinous
crime such as rape cannot be expectedto act with reason or in conformity
with society’s expectations. This acquires greater significance where the
victim is a child of tender age. The workings of a human mind placed under
emotional stress cannot be predicted; and people cannot be expected to act
as usual in an unfamiliar situation. Furthermore, it is not accurate to say that
there is a standard reaction or norm of behavior among rape victims, as each
of them had to deal withdifferent circumstances.38
Crime of Rape proven
beyond reasonable doubt
Sexual intercourse with a woman below 12 years of age, whether she
consented to it or not, is punishable as rape under our laws. As such, proof
of force, threat, or intimidation is unnecessary in cases of statutory rape,
they, not being elements of the crime. When the complainant is below 12
years old, the absence of free consent is conclusively presumedas the law
supposes that a woman below this age does not possess discernment and is
incapable of giving intelligent consent to the sexual act.39
In order to successfully convict an accused ofstatutory rape, the prosecution
must prove the following:
1.The age of the complainant;
2.The identity of the accused; and
3.The carnal knowledge between the accused and the
complainant.40
The first element was established by the prosecution upon the presentation
and submission to the court of a Certification from the Office of the Municipal
183
Civil Registrarof Mandaluyong City dated August24, 2004 stating that AAA
was born on September 10, 1996.41 Hence, she was only 6 years old when
the rape was committed in February 2003.
The second elementwas clearly satisfied when AAA positively and
consistently identified Banzuela as her offender.42
As regards the third element,it is instructive to define "carnal knowledge" in
the context it is used in the Revised Penal Code:
‘[C]arnal knowledge,’ unlike its ordinary connotation of sexual intercourse,
does not necessarily require that the vagina be penetrated or that the hymen
be ruptured. The crime of rape is deemed consummated even when the
man’s penis merely enters the labia or lips of the female organ or, as once so
said in a case, by the ‘mere touchingof the external genitalia by a penis
capable of consummating the sexual act.43 (Citations omitted.)
This element was proven when AAA detailed in open court how Banzuela
forcefully inserted his sex organ into her genitalia in February 2003 and how
she felt pain during her ordeal.
Banzuela makes much of the fact that the medico-legal examination yielded
negative results, i.e.,that AAA remained a virgin. This Court, in People v.
Boromeo,44 suitably refuted that argument, viz:
Proof of hymenal laceration is not an element of rape.An intact hymen does
not negate a finding that the victim was raped.To sustain a conviction for
rape, full penetration of the female genital organ is not necessary.It is enough
that there is proof of entry of the male organ into thelabiaof thepudendumof
the female organ. Penetration of the penis by entry into the lips of the vagina,
even without laceration of the hymen, is enough to constitute rape,and even
the briefest of contact is deemed rape.As long as the attempt to insert the
penis results in contact with the lips of the vagina, even without rupture or
laceration of the hymen, the rape is consummated.x x x. (Citations omitted.)
Significantly, as this Court has held before,45 the pain that AAA suffered is, in
itself, an indicator of the commission of rape.Moreover, AAA’s ordeal was
witnessed by BBB, who in fact was the one who told AAA’s mother about the
incident.Thus, contrary to Banzuela’s assertions, this Court is convinced that
the prosecution was able to establish that he had carnal knowledge of AAA,
making him guilty beyond reasonable doubt of thecrime of rape.
Crime of Attempted Rape not established
but crime of Acts of Lasciviousness
provenbeyond reasonable doubt
Upon appeal, the Court of Appeals found no evidence to provewith the moral
certainty required by lawthat Banzuela intended to have carnal knowledge of
BBB, thus, it modified the crime the RTC convicted Banzuela of from
Attempted Rape under Article266-A, paragraph 1(d) in relation to Article51 of
the Revised Penal Code, to Acts of Lasciviousness under Article 336 of the
Revised Penal Codein relation to Republic Act No. 7610.
This Court agrees with the Court of Appeals. In an attempt to commit a
felony, the offender commences the commission of such felony directly by
overt acts, but does not perform all the acts of execution, which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.46 In other words, a crime is in its attempted stage
when the offender has already performed the acts preliminary to the
consummation of the crime. However, because of some reason besides his
own spontaneous desistance, he is not able to perform all the acts necessary
to consummate the crime. The elements, therefore, of an attempted felony
are as follows:
1. The offender commences the commission of the felony directly by
overt acts;
2. He does not perform all the acts of execution which should
produce the felony;
3. The offender’s act be not stopped by his own spontaneous
desistance; and
4. The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.47 (Citation omitted.)
In the crime of rape, penetration, however slight, is an essential act of
execution that produces such felony. Thus, for Banzuela to be convicted of
the crime of attempted rape, he must have already commenced the act of
inserting his sexual organ in the vagina of BBB, but due to some cause or
accident, excluding his own spontaneous desistance, he wasn’t able to even
slightly penetrate BBB.48
It has not escaped this Court that rape and acts of lasciviousness are crimes
of the same nature.However, the intent to lie with the woman is the
fundamental difference between the two, as it is present in rape or attempt of
184
it,and absent in acts of lasciviousness.49 "Attempted rape is committed when
the ‘touching’ of the vagina by the penis is coupledwith the intent to
penetrate; otherwise, there can only be acts of lasciviousness."50
In this case, Banzuela’s acts oflaying BBBon the ground,undressing her,and
kissing her,"do not constitute the crime of attempted rape, absent any
showing that [Banzuela] actually commenced to force his penis into [BBB’s]
sexual organ."51
The fact that Banzuelaemployed on BBB the exactsame tactics he used on
AAA–from the invitation to go to the cemeteryto visit their dead relatives, to
the carrying of the child when she refused, to the laying down of the child,
undressing her, and kissing her, cannot justify the presumption that he
intended to rape BBB, just like he did AAA. "Such a presumption hardly
constitutes proof beyond reasonable doubt of the crime of attempted rape.
The gauge in determining whether the crime of attempted rape had been
committed is the commencement of the act of sexual intercourse,i.e.,
penetration of the penis into the vagina,before the interruption."52 Here,
Banzuela was not even able to commence the act of sexual intercourse as
he still had his pants on. Whatthe prosecution was able to establish in
Criminal Case No. MC03-918-FC-H is that Banzuela was able to lay down
BBB, undress her, and kiss her,before the untimely arrival of a third
party.Such acts, as the Court of Appeals said, 53 constitute lascivious
conduct.
Article 336 of the Revised Penal Codeprovides for the crime of acts of
lasciviousness as follows:
Art. 336.Acts of lasciviousness.—Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by
prision correccional.
Its elements are:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or
otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.54 (Citation
omitted.)
The foregoing elements are clearly present in BBB’s case, and were
sufficiently established during trial. Although the crime charged against
Banzuela was for attempted rape, convicting him for the crime of acts of
lasciviousness does not violate any of his rights as such crime is included in
the crime of rape.55
Anent BBB’s actions or inaction, suffice it to say that BBB was direct and
consistent in narrating her own experience with Banzuela.The argument that
she did not struggle, asked for help, or shout from when shewas carried out
of her house and brought to the cemetery isunavailing. "[F]ailure of the
offended party to make a struggle or outcry is immaterial in the rape of a
child below twelve years of age because the law presumes that the victim on
account of her age does not and cannot have a will of her own."56
Banzuela’s Defense
We agree with the lower courts that Banzuela’s defense of alibi hardly
deserves credit. Such defense is one of the weakest not only because it is
inherently frail and unreliable, but also because it is easy to fabricate and
difficult to check or rebut.57 Thus, for alibi to succeed as a defense, the
following must be established by clear and convincing evidence:
1. The accused’s presenceat another place at the time of the
perpetration of the offense;and
2. The physical impossibility of the accused’spresence at the scene
of the crime.58
Banzuela himself admitted the proximity of his work place and his residence
to the houses of AAA and BBB and the cemetery. As such, his alibi is
negated by the fact that it was not physically impossible for him to have been
at the cemetery wherethe crimes occurred.59
The presentation of Banzuela’s DTRs is also unpersuasive for lack of
corroboration. The DTRs were mere photocopies, Banzuela himself made
the entries therein, and they bore no signaturefrom any of his employers. If in
fact the owner of the refilling station was no longer in the country, his former
manager or the brother of the owner, from whom Banzuela’s mother was
able to procure the photocopied DTRs could have testified to confirm the
185
veracity of the entries therein. Banzuela’s alibi therefore cannot prevail over
the credible testimonies and positive identification that he was theperpetrator
of the crimes, by AAA and BBB, who have known him prior to the incidents,
as their cousin.
Liability for Rape
Article 266-A, paragraph (1)d of the Revised Penal Code, as amended by
Republic Act No. 8353,60 which is the basis of statutory rape, provides as
follows:
Article 266-A. Rape; When and How Committed. –Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
xxxx
d) When the offended party is under twelve (12) years of ageor is demented,
even though none of the circumstances mentioned above be present.
Undoubtedly, AAA was below 12 years old at the time she was raped.
However, the law qualifies the crime of statutory rape when it is committed
on a child below seven years old, to wit:
Article 266-B. Penalties. –Rape under paragraph 1 of the next preceding
article shall be punished byreclusion perpetua.
xxxx
The death penalty shall also be imposed if the crime of rape is committed
with any of the following aggravating/qualifying circumstances:
xxxx
5) When the victim is a child below seven (7) years old.
For having been found guilty of the crime of qualified rape, AAA being a child
below seven years of age when the crime occurred, the death penalty should
have been imposed on Banzuela. However, Republic Act No. 9346,61which
took effect on June 24, 2006, prohibits the imposition of the death penalty.
Under this Act, the lower courts correctly imposed upon Banzuela the penalty
of reclusion perpetuawithout eligibility for parole62 in lieu of the death
penalty.63
Liability for Acts of Lasciviousness
The Court of Appeals convicted Banzuela of acts of lasciviousness under
Article336 of the Revised Penal Codein relation to Section 5(b) of Republic
Act No. 7610. For Banzuela to be convicted as such, both the requisites of
acts of lasciviousness under Article336 of the Revised Penal Codeas earlier
discussed, and sexual abuse under Section5 of Republic Act No. 7610,must
be met and established by the prosecution.64 The following are the elements
of sexual abuse under Section5, Article III of Republic Act No. 7610:
(1) The accused commits the act of sexual intercourse or lascivious
conduct;
(2) The said act is performed witha child exploited in prostitution or
subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age.65
A review of the Information filed against Banzuela reveals that there was no
allegation of the second element of Section 5, Article III of Republic Act No.
7610 –that the act is performed with a child exploited in prostitution or
subjected to other sexual abuse. There was also noattempt to prove that
element, as it would have been a violation of Banzuela’s constitutional right
to be informed of the nature and cause of the accusation against him.
Although the Information stated that the crime being charged was in relation
to Republic Act No. 7610, it is a well-settled rule that "the character of the
crime is determined neither by the caption or preamble of the
information[,]nor by the specification of the provision of law alleged to have
been violated, they being conclusions of law, but by the recital of the ultimate
facts and circumstances in the information."66 Therefore, Banzuela can only
be punished under Article336 of the Revised Penal Code.
The penalty for acts of lasciviousness under Article336 of the Revised Penal
Codeis prision correccionalin its full range. Applying the Indeterminate
Sentence Law,67 the minimum of the indeterminate penalty shall be taken
from the full range of the penalty next lower in degree,68 i.e., arresto mayor,
which ranges from 1 month and 1 dayto 6 months.69 The maximum of the
indeterminate penalty shall come from theproper penalty70 that could be
imposed under the Revised Penal Codefor Acts of Lasciviousness.71 In this
case, since there are neither aggravating nor mitigating circumstances, the
imposable penalty is the medium period of prision correccional, which ranges
from 2 years, 4 months and 1 day to 4 years and 2 months.72
186
Banzuela is hereby sentenced to suffer the penalty of 6 months ofarresto
mayor, as minimum, to 4 years and 2 monthsofprision correccional, as
maximum.73
In line with prevailing jurisprudence, the Court increases the award of
exemplary damages from₱25,000.00 to₱30,000.00to AAA (rape); 74 and
awards ₱20,000.00as civil indemnity, ₱30,000.00as moral damages, and
₱10,000.00as exemplary damages to BBB (acts of lasciviousness).75
WHEREFORE, premises considered, the Decision of the Court of Appeals in
CA-G.R. CR.-H.C. No. 03868 is hereby AFFIRMEDwith MODIFICATION.
1. In Criminal Case No. MC03-919-FC-H, we find accused-appellant
Ferdinand BanzuelaGUILTY ofRape defined and penalized
underArticles266-A and 266-B of the Revised Penal Code, as
amended.1âwphi1 Heis sentenced toreclusion perpetuawithout the
possibility of parole; and is ORDERED to pay the victim,
AAA,₱75,000.00 as civil indemnity;₱75,000.00 as moral
damages;and₱30,000.00 as exemplary damages, all with interest at
the rate of 6% per annumfrom the date of finality of this
judgment;and
2. In Criminal Case No. MC03-918-FC-H, we find accused-appellant
Ferdinand BanzuelaGUILTYof Acts of Lasciviousness, defined and
penalized under Article 336 of the Revised Penal Code, as
amended. He is sentenced toan indeterminate prison term of6
months ofarresto mayor, as minimum, to 4 years and 2 months
ofprision correccional, as maximum; and isORDEREDto pay the
victim, BBB,₱20,000.00 as civil indemnity,₱30,000.00 as moral
damages, and₱10,000.00 as exemplary damages, all with interest at
the rate of 6% per annumfrom the date of finality of this judgment.
SO ORDERED.
EN BANC
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y
BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated
rape[2] and allowed only attempted rape and consummated rape to remain in
our statute books. The instant case lurks at the threshold of another
emasculation of the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated rape, that is, if the
contrary view were to be adopted. The danger there is that that concept may
send the wrong signal to every roaming lothario, whenever the opportunity
bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape
and punished as such. A mere strafing of the citadel of passion would then
be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender
had carnal knowledge of the victim since by it he attained his objective. All
the elements of the offense were already present and nothing more was left
for the offender to do, having performed all the acts necessary to produce the
crime and accomplish it. We ruled then that perfect penetration was not
essential; any penetration of the female organ by the male organ, however
slight, was sufficient. The Court further held that entry of the labiaor lips of
the female organ, even without rupture of the hymen or laceration of the
vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were
performed as the offender merely commenced the commission of a felony
directly by overt acts.[3] The inference that may be derived therefrom is that
complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the
crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring
entry into the labia or lips of the female organ, even if there be no rupture of
the hymen or laceration of the vagina, to warrant a conviction for
consummated rape. While the entry of the penis into the lips of the female
organ was considered synonymous with mere touching of the external
187
genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom
line is that touching must be inextricably viewed in light of, in relation to, or as
an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked
to the penetration itself. The importance of the requirement of penetration,
however slight, cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the crime committed
amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape
has been committed either in its attempted or in its consummated stage;
otherwise, no substantial distinction would exist between the two, despite the
fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably
spells the difference between life and death for the accused - a reclusive life
that is not even perpetua but only temporal on one hand, and the ultimate
extermination of life on the other. And, arguing on another level, if the case at
bar cannot be deemed attempted but consummated rape, what then would
constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would
no longer be possible in light of the view of those who disagree with
this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape
and sentenced by the court a quo to the extreme penalty of death,[5] hence
this case before us on automatic review under Art. 335 of the Revised Penal
Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4
oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year
old Crysthel Pamintuan, went down from the second floor of their house to
prepare Milo chocolate drinks for her two (2) children. At the ground floor she
met Primo Campuhan who was then busy filling small plastic bags with water
to be frozen into ice in the freezer located at the second floor. Primo was a
helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry, "Ayo'ko,
ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo
Campuhan inside her childrens room kneeling before Crysthel whose
pajamas or "jogging pants" and panty were already removed, while his short
pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina.
Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants. He
pushed Corazon aside when she tried to block his path. Corazon then ran
out and shouted for help thus prompting her brother, a cousin and an uncle
who were living within their compound, to chase the accused.[8]Seconds
later, Primo was apprehended by those who answered Corazon's call for
help. They held the accused at the back of their compound until they were
advised by their neighbors to call the barangay officials instead of detaining
him for his misdeed. Physical examination of the victim yielded negative
results. No evident sign of extra-genital physical injury was noted by the
medico-legal officer on Crysthels body as her hymen was intact and its orifice
was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his refusal to
run an errand for her.[9] He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly pulled him down
causing both of them to fall down on the floor. It was in this fallen position
that Corazon chanced upon them and became hysterical. Corazon slapped
him and accused him of raping her child. He got mad but restrained himself
from hitting back when he realized she was a woman. Corazon called for
help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to explain
as he reasoned out that the accusation was not true. But Vicente kicked him
instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised
his hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take Primo to
the barangayhall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27
May 1997 found him guilty of statutory rape, sentenced him to the extreme
penalty of death, and ordered him to pay his victim P50,000.00 for moral
damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma.
Corazon Pamintuan. He argues that her narration should not be given any
weight or credence since it was punctured with implausible statements and
improbabilities so inconsistent with human nature and experience. He claims
that it was truly inconceivable for him to commit the rape considering that
Crysthels younger sister was also in the room playing while Corazon was just
downstairs preparing Milo drinks for her daughters. Their presence alone as
possible eyewitnesses and the fact that the episode happened within the
family compound where a call for assistance could easily be heard and
responded to, would have been enough to deter him from committing the
188
crime. Besides, the door of the room was wide open for anybody to see what
could be taking place inside. Primo insists that it was almost inconceivable
that Corazon could give such a vivid description of the alleged sexual contact
when from where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of
penetration of Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony
of Corazon that she saw Primo with his short pants down to his knees
kneeling before Crysthel whose pajamas and panty were supposedly
"already removed" and that Primo was "forcing his penis into Crysthels
vagina." The gravamen of the offense of statutory rape is carnal knowledge
of a woman below twelve (12), as provided in Art. 335, par. (3), of the
Revised Penal Code. Crysthel was only four (4) years old when sexually
molested, thus raising the penalty, from reclusion perpetua to death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party
being below seven (7) years old. We have said often enough that in
concluding that carnal knowledge took place, full penetration of the vaginal
orifice is not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the penis capable
of consummating the sexual act is sufficient to constitute carnal
knowledge.[10]But the act of touching should be understood here as inherently
part of the entry of the penis into the labias of the female organ and not mere
touching alone of the mons pubisor the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for
rape even if the attackers penis merely touched the external portions of the
female genitalia were made in the context of the presence or existence of an
erect penis capable of full penetration. Where the accused failed to achieve
an erection, had a limp or flaccid penis, or an oversized penis which could
not fit into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on
the lips of her vulva,[12] or that the penis of the accused touched the middle
part of her vagina.[13]Thus, touching when applied to rape cases does not
simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victims vagina, or
the mons pubis, as in this case. There must be sufficient and convincing
proof that the penis indeed touched the labias or slid into the female organ,
and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape.[14] As the labias, which are required to be
"touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them with
the penis is to attain some degree of penetration beneath the surface, hence,
the conclusion that touching the labia majora or the labia minora of
the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs
that are visible in the perineal area, e.g., mons pubis, labia majora, labia
minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is instantly visible
within the surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner surface.
The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any
hair but has many sebaceous glands. Directly beneath the labia majora is
the labia minora.[15]Jurisprudence dictates that the labia majora must
be entered for rape to be consummated,[16] and not merely for the penis to
stroke the surface of the female organ. Thus, a grazing of the surface of the
female organ or touching the mons pubis of the pudendum is not sufficient to
constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of
the pudendumby the penis, there can be no consummated rape; at most, it
can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-
quoted "touching of the female organ,"[17] but has also progressed into being
described as "the introduction of the male organ into the labia of
the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our
mind, the case at bar merely constitutes a "shelling of the castle of orgasmic
potency," or as earlier stated, a "strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to
discharge its onus of proving that Primos penis was able to penetrate
Crysthels vagina however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her daughter, we seriously
doubt the veracity of her claim that she saw the inter-genital contact between
Primo and Crysthel. When asked what she saw upon entering her childrens
room Corazon plunged into saying that she saw Primo poking his penis on
the vagina of Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo, the contact
point. It should be recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling position, which Corazon
described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the
chest of the accused is pinning down the victim, while his
189
 right hand is holding his penis and his left hand is spreading
the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling
position rendered an unbridled observation impossible. Not even a vantage
point from the side of the accused and the victim would have provided
Corazon an unobstructed view of Primos penis supposedly reaching
Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris,
etc., since the legs and arms of Primo would have hidden his movements
from Corazons sight, not to discount the fact that Primos right hand was
allegedly holding his penis thereby blocking it from Corazons view. It is the
burden of the prosecution to establish how Corazon could have seen
the sexual contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was done to her
daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude
without any taint of serious doubt that inter-genital contact was at all
achieved. To hold otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of the accused
to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked
intention despite her timely appearance, thus giving her the opportunity to
fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-
preservation to remain where he is and persist in satisfying his lust even
when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the
normal behavior or reaction of Primo upon learning of Corazons presence
would have been to pull his pants up to avoid being caught literally with his
pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal his
evil design.
What appears to be the basis of the conviction of the accused was Crysthel's
answer to the question of the court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily
said, "No." Thus -
Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds
the question of whether rape in this case was consummated. It has
foreclosed the possibility of Primos penis penetrating her vagina, however
slight. Crysthel made a categorical statement denying
penetration,[21] obviously induced by a question propounded to her who could
not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to
attach to this reply of a four (4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is bereft of worldly
sophistication, an adult interpretation that because the penis of the
accused touched her organ there was sexual entry. Nor can it be deduced
that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered the labia of
her pudendum as the prosecution failed to establish sufficiently that Primo
made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not even hint
that Primo's penis was erect or that he responded with an erection. [23] On the
contrary, Corazon even narrated that Primo had to hold his penis with his
right hand, thus showing that he had yet to attain an erection to be able to
penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels
vagina is belied by the child's own assertion that she resisted Primos
advances by putting her legs close together;[24] consequently, she did not feel
any intense pain but just felt "not happy" about what Primo did to
her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In
cases where penetration was not fully established, the Court had anchored
its conclusion that rape nevertheless was consummated on the victim's
testimony that she felt pain, or the medico-legal finding of discoloration in the
inner lips of the vagina, or the labia minora was already gaping with redness,
or the hymenal tags were no longer visible.[26] None was shown in this case.
Although a child's testimony must be received with due consideration on
account of her tender age, the Court endeavors at the same time to harness
only what in her story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to conclude that even on
the basis of the testimony of Crysthel alone the accused cannot be held
liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case
that there were no external signs of physical injuries on complaining witness
body to conclude from a medical perspective that penetration had taken
place. As Dr. Aurea P. Villena explained, although the absence of complete
190
penetration of the hymen does not negate the possibility of contact, she Republic of the Philippines
clarified that there was no medical basis to hold that there was sexual SUPREME COURT
contact between the accused and the victim.[27] Manila

In cases of rape where there is a positive testimony and a medical certificate,

both should in all respects complement each other; otherwise, to rely on the THIRD DIVISION
testimonial evidence alone, in utter disregard of the manifest variance in the
medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the PEOPLE OF THE PHILIPPINES, G.R. No. 187494
accused in reality entered the labialthreshold of the female organ to Plaintiff-Appellee,
accurately conclude that rape was consummated. Failing in this, the thin line Present:
that separates attempted rape from consummated rape will significantly
- versus -
disappear.
CORONA, J., Chairperson,
VELASCO, JR.,
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
ELMER BARBEROS alias EMIE, NACHURA,
attempted when the offender commences the commission of rape directly by
Accused-Appellant. PERALTA, and
overt acts, and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than DEL CASTILLO,* JJ.
his own spontaneous desistance. All the elements of attempted rape - and
only of attempted rape - are present in the instant case, hence, the accused Promulgated:
should be punished only for it.
December 23, 2009
The penalty for attempted rape is two (2) degrees lower than the imposable x-----------------------------------------------------------------------------------------x
penalty of death for the offense charged, which is statutory rape of a minor
below seven (7) years. Two (2) degrees lower is reclusion temporal, the DECISION
range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any VELASCO, JR., J.:
mitigating or aggravating circumstance, the maximum of the penalty to be The Case
imposed upon the accused shall be taken from the medium period
of reclusion temporal, the range of which is fourteen (14) years, eight (8) Before us is an appeal from the Decision[1] dated March 5, 2008 of the Court of
months and (1) day to seventeen (17) years and four (4) months, while the Appeals (CA) in CA-G.R. CEB-CR-HC No. 00316 which affirmed with modification the
minimum shall be taken from the penalty next lower in degree, which Judgment[2] of the Regional Trial Court (RTC), Branch 14 in Cebu City, convicting
is prision mayor, the range of which is from six (6) years and one (1) day to accused-appellant Elmer Barberos alias Emie of the crime of rape.
twelve (12) years, in any of its periods.
The Facts
WHEREFORE, the Decision of the court a quo finding accused PRIMO
"SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him In an Information dated January 11, 1999 filed before the RTC of Cebu City and
to death and to pay damages is MODIFIED. He is instead found guilty of docketed thereat as Criminal Case No. CBU-49307, appellant Elmer was indicted for
ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight the crime of rape, as defined under Article 266-A of the Revised Penal Code (RPC),
(8) years four (4) months and ten (10) days of prision mayor medium as
as amended by Republic Act No. (RA) 8353,[3] allegedly committed as follows:
minimum, to fourteen (14) years ten (10) months and twenty (20) days
of reclusion temporal medium as maximum. Costs de oficio.
That on or about the 22nd day of December 1998, at around 12:00 oclock past dawn,
SO ORDERED. more or less, in Sitio Cambuntan, Barangay Bolinawan, Municipality of Carcar,

191
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
with lewd design and by means of force and intimidation, the accused, did then and
there willfully, unlawfully and feloniously choke her throat and threaten her SABA
RON KAY PATYON TA KA (GO AHEAD SHOUT AND I WILL KILL YOU), then forcibly
open her short pants and panty, tearing her sando, place himself on top of her and
forcibly insert his penis into her vagina and succeed in having sexual intercourse
with x x x [AAA], a 15 year-old girl against her will and consent.[4]
Upon arraignment, Elmer pleaded not guilty to the above charge.
Version of the Prosecution
The prosecution presented the following witnesses: AAA, the private complainant,
and Dr. Daphnie Rana, the examining doctor, to establish the following facts:
In the evening of December 21, 1998, AAA, then 15 years old, along with four
friends, watched a variety show near the cemetery of Cambuntan, Bolinawan,
Carcar, Cebu. At around 10:00 or 11:00 p.m., a neighbor informed AAA that her
father and uncle were quarreling at her grandmothers place. AAA immediately
proceeded to her grandmothers house and heard, as she was nearing the place, the
raised voices of her father and uncle. Alarmed, she cried for help but nobody
heeded her call. It was at this instance that Elmer, a neighbor, drew near her and
told her not to worry because he would protect her. Upon the urging of Elmer, AAA
went with him to his two-storey house some 50 meters away. He then led her to a
room at the second floor and, once inside, locked the door.
After a while, Elmer made his move and, despite AAAs loud protestation, succeeded
in placing himself on top of AAA, who shouted for help but only to be choked and
told, Saba ron kay patyon ta ka. (Do not shout, otherwise I will kill you.) AAAs
attempt to wrestle herself free from Elmers hold did not prevent the latter from
getting inside her, although she felt a less-than-total penetration. And at some
point during the struggle, AAA was able to cover her private part with her left hand
while grabbing Elmers sex organ with her right hand.
Then, someone knocked at the door. When Elmer stood up to open it, AAA lost no
time in picking up her short pants and panty and jumped out the window. Upon
reaching her grandmothers place at around 1:00 a.m., she told her grandmother the
ordeal she just went through. She then washed herself. Even at that late hour, she
was raring to report the incident to the police until she noticed Elmer standing
outside their house.
At about 10:00 a.m. of December 22, 1998, AAA, with her mother, reported the
matter to the police. From Carcar, AAA and her mother, accompanied by a
policewoman, proceeded to the Don Vicente Sotto Medical Center, where Dr. Rana
conducted an examination on AAA. Her findings: an intact hymen and the absence
of spermatozoa in the vaginal canal. As to the first phenomenon, the doctor
ventured the opinion that a woman raped could still have an intact hymen either
because there was no full penile insertion, the penetration was limited only to
the labia, or the hymen was distensible. The absence of spermatozoa in the vagina
could be due to the fact that there might have been no ejaculation, or the sperm
might have been washed out.
Version of the Defense
Elmer denied the crime imputed to him. To buttress his defense, Elmer presented
his wife, Paterna, who testified being in the vicinity of AAAs grandmothers house
when AAAs father and uncle were having an argument.Apparently, the uncle fired
at AAAs father, with the explosion and noisy altercation attracting the neighbors.
Upon reaching home on the night in question, Paterna was surprised to find a crying
AAA on the second floor, visibly afraid because of the firing incident and crying her
help. When Elmer arrived with one Elijorde Paniroso,[5] AAA rushed toward the
window apparently to flee and, despite Elmers admonition to be careful, eventually
jumped out.
The defense proffered the theory that the fabricated rape charge was due to a
standing feud between the Barberoses and AAAs family which started when the
Barberoses built their house on a piece of land formerly tilled by AAAs family.
The Ruling of the RTC
After trial, the RTC, on November 13, 2000, rendered judgment,[6] finding Elmer
guilty of the crime charged and accordingly sentenced him, thus:
WHEREFORE, foregoing premises considered, JUDGMENT is hereby rendered
finding the accused ELMER BARBEROS GUILTY beyond reasonable doubt of RAPE
falling under paragraph 1, subparagraph a, ART. 266-A of the Revised Penal Code as
amended by R.A. No. 8351 [sic] and hereby imposes upon him the penalty of
RECLUSION PERPETUA as imposed under ART. 266-B of the same Code, as
amended.
Accused is, likewise, ordered to pay private complainant the amount of P50,000.00
as his civil liability to her.
SO ORDERED.[7]
192
Therefrom, Elmer appealed directly to this Court, the appeal initially docketed
as G.R. No. 147241. Following, however, the submission by the parties of their
respective briefs, People v. Mateo[8] was promulgated. And in line with Mateo, the
Court, via its November 22, 2004 Resolution,[9] referred the instant case to the CA
for intermediate review.
The Ruling of the CA
On March 5, 2008, in CA-G.R. CEB-CR-HC No. 00316, the appellate court rendered
the appealed decision, affirming that of the RTC, but with the modification
awarding AAA moral damages in the amount of PhP 50,000. The fallo of the CA
decision reads:
All told, the assailed Decision dated 13 November 2000 by the Regional Trial Court,
Branch 14, in Cebu City finding the accused guilty beyond reasonable doubt of
RAPE and sentencing him to suffer the penalty of reclusion perpetua is
hereby AFFIRMED. The Civil aspect of the case is MODIFIED to read as
follows: Appellant is ORDERED to pay private complainant the amount of
P50,000.00 as moral damages and the amount of P50,000.00 as civil indemnity.
SO ORDERED.[10]
On April 3, 2008, Elmer filed his notice of appeal, to which the CA, per its resolution
of December 12, 2008, gave due course.
In response to the Courts Resolution for them to submit supplemental briefs if they
so desired, the parties manifested their willingness to have the case resolved on the
basis of the Brief for the Accused-Appellant[11] and Brief for the
Appellee,[12] respectively, filed in G.R. No. 147241.
The Issues
Consequently, from his Brief, appellant raises the same assignments of errors
earlier passed over and resolved by the CA, to wit: first, that the courts a quoerred
in finding him guilty beyond reasonable doubt of the crime of rape; and second,
that the courts a quo gravely erred in adjudging him guilty of consummated rape
instead of attempted rape.
The Courts Ruling
After a circumspect review of the records, the Court affirms appellants conviction.
Prefatorily, while it is not wont to go over and re-assess the evidence adduced
during the trial, more so when the appellate court affirms the findings and
conclusions of the trial court, the Court, in criminal cases falling under its review
jurisdiction under the Constitution,[13] is nonetheless tasked to assiduously review
such cases, as in the instant appeal. Besides, utmost care is required in the review
of a decision involving conviction of rape due to the pernicious consequences such
conviction bear on both the accused and the offended party. [14]
By the distinctive nature of rape cases, conviction usually rests solely on the basis of
the victims testimony, provided it is credible, natural, convincing, and consistent
with human nature and the normal course of things.[15] Accordingly, the Court has
unfailingly adhered to the following guiding principles in the review of similar cases,
to wit: (1) an accusation for rape can be made with facility; while the accusation is
difficult to prove, it is even more difficult for the accused, though innocent, to
disprove; (2) considering that, in the nature of things, only two persons are usually
involved in the crime of rape, the testimony of the complainant must be scrutinized
with extreme caution; and (3) the evidence for the prosecution must stand or fall on
its own merits, and cannot be allowed to draw strength from the weakness of the
evidence for the defense. [16]
Complementing the foregoing principles is the rule that the credibility of the victim
is always the single most important issue in prosecution for rape;[17] that in passing
upon the credibility of witnesses, the highest degree of respect must be afforded to
the findings of the trial court.[18]
Rape is defined and penalized under Arts. 266-A and 266-B of the RPC, as amended,
which provide:
ART. 266-A. Rape, When and How Committed. Rape is committed
1. By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a. Through force, threat or intimidation;
b. When the offended party is deprived of reason or is otherwise
unconscious;
x x x x (R.A. No. 8353, October 22, 1997.)
ART. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall
be punished by reclusion perpetua. (Emphasis supplied.)
193

Thus, in context, for the charge of rape to prosper, the prosecution must prove that
(1) the offender had carnal knowledge of a woman, (2) through force, threat, or
intimidation.
In the instant case, the prosecution established the elements of carnal knowledge
and the force, threat, or intimidation employed. AAA, with firmness and certainty,
pointed to appellant Elmer as the person who sexually molested her.She never
wavered in her identification and was straightforward in her narration of how the
assault occurred. Both the RTC and CA found the eloquent testimony of AAA
positive and candid, and not at all rebutted during the cross-examination, thus
deserving full weight and credit. To quote directly from the records:
Atty. Yongco: What is the full name of this Emie you are referring to?
AAA: Elmer Barberos my neighbor.
Q: You mean the accused in this case?
A: Yes.
xxxx
Q: After he put his arms around your shoulder, what did he say if any?
A: He told me that dont worry about that .
xxxx
Q: After then (sic) after that, what happened next?
A: He told me he will keep me in his residence.
Q: Did you not ask why he is going to keep you in his residence?
A: He told me that he will just keep me in his residence because if my uncle would
see me he might kill me.
xxxx
Q: After you were told by Emie that he will keep you in his residence, what did you
do?
A: I went with him.
xxxx
Q: Was there anybody in the house when you reached the house?
A: None.
xxxx
Q: After Elmer Barberos told you that you will go upstairs, what did he do if any?
A: He told me that we will put off the light because if the house is lighted my uncle
might see me and he will kill me and I might be seen outside.
Q: And so did Elmer Barberos put off the light inside the house?
A: Yes, Maam.
xxxx
Q: After the accused and you entered the room, what did the accused do?
A: He closed the door.
Q: After Elmer Barberos closed the door, what did Elmer Barberos do after he
closed the door?
A: Maybe he locked the door because I cannot really see it because it was dark.
Q: So when you were already inside the room and after the accused closed and
locked the door, what happened next?
A: He conversed with me.
Q: What was the topic he conversed with you?
xxxx
Q: After you told him that you wanted to go home, what did Elmer Barberos
answer?
A: He told me later only.
Q: So what did you do when Elmer Barberos told you to wait?
A: I told Elmer Barberos I will just go home because they might be looking for me
and they might have finished their fight.
Q: So when you [said] that to Elmer Barberos, what did Elmer Barberos do?
A: Elmer Barberos told me you are a fool and he immediately put his body on top of
me.
Q: So after Elmer Barberos told you you are a fool and put himself on top of you,
what happened to you?
A: I shouted for help.
Q: How did you exactly shout for help at that time?
A: I shouted Ma, help me Ma because Elmer Barberos put himself on top of me.
Atty. Yongco: I would like to put on record, Your Honor, that the witness is crying
when she uttered the statement.
Q: After you made a shout for help, what did Elmer Barberos do?
A: He choked my throat and told me if you will shout I will kill you.
Q: After Elmer Barberos told you that he will kill you, what did Elmer Barberos do
after that?
A: His body was on top of me and he pushed and pull.
COURT: If the accused is inside the courtroom, can you identify him?
A: Yes.
Q: Can you point to the person?
A: That one.
COURT INTERPRETER: The witness pointed to the person who responded that his
name is Elmer Barberos while the victim kept on crying.
Q: At that time what were you wearing?
A: I was wearing a white t-shirt and maong short pants.
xxxx
Q: You said that after Elmer Barberos choked you and told you not to make any
noise because he will kill you, he made a push and pull motion. At that time he was
making the push and pull motion were you wearing your shorts?
A: I was wearing maong short pants and he immediately pulled out my short pants.
194
xxxx
A: He forcibly pull[ed] down my short pants because it was loose.
Q: When accused Elmer Barberos pull[ed] down your short pants, was there
anything left in your underwear?
A: No more because when he pulled down my short pants my panty went with the
short pants.
xxxx
Q: And so after Elmer Barberos pulled down your short pants together with your
panty, what did Elmer Barberos do after that?
A: We wrestled because I resisted. There was a time that I was on top and the
next time I was under him.
Q: So after you wrestled with Elmer Barberos, what happened?
A: His penis was inside my vagina but it did not penetrate. It just stayed on the lip
of my vagina.
Q: And at that time what did you feel?
A: I felt pain but then again I resisted.
Q: You were telling that the penis of the accused has touched your vagina, what
was your position at that time in relation to the position of the accused Barberos?
A: At that time when his penis touched the lip of my vagina my position was
lying. Afterwards I wrestled again so at that time I was on top of him again.
xxxx
Q: So with that position that you were lying with your right hand at your back, what
did the accused Elmer Barberos do?
A: When I was lying while my right hand was at my back he wanted again for the
second time to insert his penis into my vagina but I used my left hand in covering
my vagina.
xxxx
Q: And so when you were in that position, what did you feel if any on your vagina
because accused Barberos according to you was trying to push his penis to your
vagina?
A: Since I kept on moving at that time my right hand was able to release from my
back and I took hold of his penis.
Q: After you took hold of the penis of the accused Elmer Barberos, what happened?
A: Somebody knocked at the door.
xxxx
Q: And so did Elmer Barberos open the door?
A: Yes, Maam.
Q: So when Elmer Barberos went to open the door, what did you do?
A: I took my short pants and panty. And since I was near the window I prayed for
the help of God, I made a sign of the cross and immediately jumped over the
window.[19] (Emphasis supplied.)
The foregoing positive testimony of AAA, as well as the rage that went into it, are
badges of truth and sincerity. When the offended party is of tender age and
immature, as here, courts are inclined to give credit to her account of what
transpired, considering not only her relative vulnerability but also the shame and
embarrassment to which she would be exposed if the matter to which she testified
is not true.[20] Judging from her live birth certificate,[21] AAA was 15 years old at the
time of the incident, barely 16 or 17 when she took the witness stand in 2000. It is
settled that when a girl, more so when she is in her early teens, says she has been
raped, she says in effect all that is necessary to prove that rape was committed, and
if her testimony meets the test of credibility, that is sufficient to convict the
accused.[22] As it were, AAAs testimony as to her hideous experience in the hands of
appellant deserves full faith and credit, given as it were in a straightforward and
candid manner, unshaken by rigid cross-examination and bereft of inconsistencies,
or contradictions in material points.[23]
Auguring well for AAAs credibility was her eagerness to report right away to the
proper authorities a crime committed against her person. When her grandmother
exhibited reluctance about immediately reporting the matter to the police, she took
it upon herself to do so, but was prevented only by the presence of appellant
outside her grandmothers house. But the very next morning, she lost no time in
going to the police station to report the rape incident.
The physical examination Dr. Rana conducted on AAA several hours after the
incident happened also amply explains and corroborates her testimony on the fact
of partial penile penetration. The medical findings of Dr. Rana embodied in her
Medical Report[24] are consistent with the partial penetration testified to.
Appellant has made much of Dr. Ranas report on the absence of medical traces of
hymenal laceration on AAA. Given, however, the unwavering sworn account of AAA
as to what she went through in appellants hands, the Court cannot accord merit to
the argument that the lack of physical manifestation of rape weakens the case
against the latter. The medical report on AAA is only corroborative of the finding of
rape. The absence of external signs or physical injuries on the complainants body
does not necessarily negate the commission of rape.[25] This is because hymenal
laceration is not an element of the crime of rape,[26] albeit a healed or fresh
laceration is a compelling proof of defloration.[27]What is more, the foremost
consideration in the prosecution of rape is the victims testimony and not the
findings of the medico-legal officer. In fact, a medical examination of the victim is
not indispensable in a prosecution for rape; the victims testimony alone, if credible,
is sufficient to convict.[28]
In a long line of cases, the Court has consistently held that full penile penetration of
the penis into the vagina is not required for the commission of rape, as mere penile
entry into the labia of the pudendum of the vagina, even without rupture or
195
laceration of the hymen, is enough to justify a conviction for rape. In People v.
Diunsay-Jalandoni,[29] citing People v. Iluis,[30] we ratiocinated, thus:
Further, the absence of external signs of violence does not negate the commission
of rape. Nor is the absence of spermatozoa material in the prosecution of a rape
case. A freshly broken hymen is, likewise, not an essential element of rape, and
healed lacerations do not negate rape because full penetration is not necessary to
consummate rape. Penetration of the penis by entry into the labia of
the pudendum of the vagina, even without rupture or laceration of the hymen, is
enough to justify a conviction of rape.[31](Emphasis supplied.)
In light of the foregoing disquisition, the Court need not belabor the issue as to
whether appellants liability is only for attempted, not consummated, rape. Suffice it
to state that the trial court, joined by the CA, found appellants penis to have
touched the labia and penetrated AAAs vagina, albeit unsuccessful in completely
entering it. Full penile penetration is not a consummating ingredient in the crime of
rape. The mere knocking at the door of the pudendum by the accuseds penis
suffices to constitute the crime of rape.[32]
As to the means used in the sexual assault, the prosecution had likewise sufficiently
showed the force, threat, and intimidation employed by appellant to satisfy his
lust. It must be borne in mind that in rape, the force and intimidation must be
viewed in light of the victims perception and judgment at the time of the
commission of the crime. As a matter of settled jurisprudence, rape is subjective
and not all victims react the same way; there is in fine no stereotypical form of
behavior of a woman when facing a traumatic experience, such as a sexual
assault.[33]
In the instant case, however, AAA, true to human nature, resisted with all her might
the beastly act perpetrated on her. When appellant grabbed her and placed himself
on top of her, AAA cried for help which prompted Elmer to choke her and threaten
her with death. Yet, while deterred from shouting, AAA still struggled resolutelyas
her eloquent testimony above-quoted showssuch that Elmer was not able to
achieve full penile penetration. Her vigorous resistance resulted in her being able to
cover her vagina with her left hand while eventually holding Elmers penis forcefully
with her right hand.
Not lost on the Court is the established fact of AAA jumping from the second floor
of Barberoses dwelling. She said that she did it just to escape from Elmers clutches,
unmindful of the physical harm it might bring to her. This is similar to running away
from danger out of uncontrollable fear, heedless of any resultant injury that might
occur, considering, in the instant case, that the leap entailed a fall from a
considerable height.
The defense had offered a theory about the jumping incident. The arrival of
appellant and his friend, Elijorde, allegedly so frightened the hiding AAA that she
was forced to jump from the second floor window. This is, of course, incredulous,
for if AAA indeed sought shelter in the Barberoses residence out of fear of her
uncle, as Paterna asserted in the witness box, the Court cannot understand why the
mere arrival and sight of the appellant and Elijorde would give AAA a scare.
Paternas naturally biased testimony in support of her husbands denial of culpability
deserves scant consideration in light of the positive identification and categorical
declaration made by AAA against the appellant. When the denial of the accused is
tended to be established only by himself, his relatives, or friends, such denial should
be accorded the strictest scrutinyit is necessarily suspect and cannot prevail over
the testimonies of the more credible testimonies for the prosecution.[34] So it must
be here.
The thesis the defense espoused that AAAs family fabricated the charge against
Elmer owing to some misunderstanding over a piece of land taxes credulity. For
one, no credible evidence had been adduced to prove the supposed land dispute.
For another, the lengthy narrative of AAA of how appellant ravished her strikes the
Court as a product of her thirst for justice, not as a jumping board to settle old
slight. And for a third, the presence of the elements of the crime of rape had been
sufficiently established. In People v. Gagto, we held that not a few accused in rape
cases have attributed the charges brought against them to family feuds,
resentment, or revenge. But such alleged motives have never swayed the court
from lending full credence to the testimony of the complainant who remained
steadfast throughout her direct and cross examinations, especially a minor in this
case. [35]
The Court also affirms the penalty thus meted on the appellant, reclusion
perpetua being the imposable penalty even for unqualified rape. Finally, the award
by the CA of moral damages in the amount of PhP 50,000, on top of the award of
PhP 50,000 as civil indemnity ex delicto, is in order, even without further proof of
moral suffering or anguish, as People v. Jumawid[36] and other cases teach.[37]
WHEREFORE, premises considered, we AFFIRM IN TOTO the March 5, 2008
Decision of the Court of Appeals in CA-G.R. CEB-CR-HC No. 00316.
No pronouncement as to costs.
SO ORDERED.
196
 EN BANC
[G.R. Nos. 140873-77. February 6, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. LEVI
SUMARAGO, appellant.
DECISION
CALLEJO, SR., J.:
The Spouses Vivencio and Teodora Brigole had four children. Two of
them were girls Norelyn, who was born on December 24, 1984,[1] and her
older sister Doneza, who was born in 1983. However, Teodora left Vivencio
and kept custody of their children.
In 1991, Teodora and the appellant, Levi Sumarago, an eighteen-year-
old mestizo Subanen, started living together as husband and wife. They had
two children, Maricel and Levi Sumarago, Jr. Teodora and Levi often
quarreled because of their myriad problems. In 1993, then thirteen-year-old
Doneza went to Malaysia for employment.
In the morning of March 5, 1995, Norelyn, who was then barely ten
years old, was gathering firewood with the appellant in the latters
farmland. While they were nearing a guava tree, the appellant suddenly
boxed her on the stomach. Norelyn lost consciousness. She had her clothes
when she woke up. It was about noon. She had a terrible headache and felt
pain in her vagina. She also had a bruise in the middle portion of her right
leg. The appellant warned her not to tell her mother about it, otherwise he
would kill her.
On March 13, 1995, Norelyn and the appellant were again gathering
firewood. The appellant ordered her to follow him to the banana plantation
owned by Mejorcada in Barangay Manlin, Buug, Zamboanga del Sur. He
walked ahead, while Norelyn followed.She then lost sight of the appellant. As
she passed by the banana plantation, the appellant suddenly appeared and
grabbed her. He then forced her to lie down. He removed her panties and
when she tried to shout, he covered her mouth with his hand.He mounted her
and inserted his penis into her vagina. Norelyn felt excruciating pain.After he
was satiated, the appellant stood up and ordered her to put on her
panties. He warned her Dont you ever tell, I will surely kill you.
On March 24, 1995, Norelyn and the appellant were scheduled to gather
firewood in the farmland owned by Mejorcada. Norelyn did not want to go,
but she could not refuse as the appellant would get mad at her. She sat by a
guava tree and waited for the appellant. When he arrived, he told her to
come near him. Norelyn refused. The appellant then held her hand and
brought her to an area hidden by bushes. He took off Norelyns panties and
undressed himself. He went on top of her and inserted his penis into her
vagina. Norelyn could not move as the appellant pinned her legs with his
own.She tried to shout but the appellants hand was on her mouth. After he
was done with her, he ordered her to put on her clothes. He then dressed
himself and told her that they were going home. Norelyn did not tell her
mother about the incident for fear that the appellant would kill them both.
On April 2, 1995, Norelyn and the appellant gathered firewood anew in
the same farmland. She waited for the appellant before leaving for
home. The appellant arrived.He undressed Norelyn and forced her to lie
down and mounted her. She tried to shout but he covered her mouth with his
hand. He then inserted his penis into her vagina.After he was satiated, he
ordered her to put her clothes on and to stand up.
On April 11, 1995, the appellant told Norelyn that they were going
to BarangayLantawan where Subanen tribes resided to gather firewood. She
told the appellant that she could not go with him because she had some
chores to do in the house. The appellant insisted and told her to let her
mother do the chores. After gathering firewood, the appellant told her that
they would get some abaca with which to tie the wood.However, when they
were near tall grasses, he pulled her down and took off all her clothes. After
undressing himself, the appellant mounted her and inserted his penis into her
vagina. Norelyn tried in vain to shout, but she could not as the appellants
hand covered her mouth. Afterwards, he ordered her to put on her clothes.
Later, Norelyn told her sister Doneza that the appellant had raped her.
On August 24, 1996, Sopiana Maque, Teodoras mother and Norelyns
grandmother, was in Zamboanga City visiting her other daughter. Norelyn
and Doneza stayed with their grandmother. Doneza asked Sopiana if she
knew about what happened to Norelyn. When Sopiana replied in the
negative, Doneza told her that the appellant had raped Norelyn. When
Sopiana confronted Norelyn, the latter confirmed what Doneza said. Sopiana
was shocked. She cried as she thought of her granddaughters terrible ordeal.
On August 30, 1996, Sopiana and her granddaughters returned to
Barangay Manlin. Sopiana told Teodora what Doneza and Norelyn had
related to her. Teodora confronted Norelyn and the latter confirmed that the
appellant had indeed raped her.She told her mother that she did not say
anything earlier because she was afraid the appellant might kill her and their
family.
197
 The appellant was then in jail on a rape charge. Teodora visited him
there and confronted him about the matter. At first, the appellant denied that
he raped Norelyn. He later had a change of heart and admitted that he had
indeed raped Norelyn. Teodora was infuriated.
On October 18, 1996, Teodora had Norelyn examined by Dr. Avenida
Vista. The doctors findings were as follows:
DIAGNOSIS/FINDINGS:
(-)- MENARCHE
BREAST-SLIGHTLY DEVELOPED
VULVA:
LABIA MINORA NOT WELL DEVELOPED
LABIA MAJORA NOT WELL DEVELOPED
- LACERATION INCOMPLETE AT
HYMEN 3 OCLOCK AND 9
OCLOCK POSITION
- NO ABRASION NOR
HEMATOMA NOTED
(-) ABSENCE OF
SPERMATOZOA[2]
On October 29, 1996, Teodora and Norelyn filed a criminal complaint for
rape against the appellant with the Municipal Trial Court of Buug,
Zamboanga del Sur.[3]
The appellant was charged with five counts of rape in five Informations
filed with the Regional Trial Court of Zamboanga del Sur, Branch 20. The
docket numbers and the accusatory portion of each Information read as
follows:
CRIMINAL CASE NO. 2537
That on or about April 11, 1995 at 8:30 oclock on the morning more or less at
Barangay Lantawan, Municipality of Buug, Province of Zamboanga del Sur,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused by means of force and intimidation, did then and there willfully, unlawfully
and feloniously succeed, in having carnal knowledge with one Norilyn (sic) Brigole
a minor of (10) ten years old, against the latters will.
Act contrary to Article 335 of the Revised Penal Code.
CRIMINAL CASE NO. 2538
That on March 24, 1995 at noon more or less, at Barangay Manlin, Municipality of
Buug, Province of Zamboanga del Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and intimidation, did
then and there willfully, unlawfully and feloniously succeed in having carnal
knowledge with one Norilyn Brigole, a minor of 10 years old, against her will.
Act contrary to Article 335 of the Revised Penal Code.
CRIMINAL CASE NO. 2539
That on March 13, 1995 at 10:00 oclock more or less in the morning at Barangay
Manlin, Municipality of Buug, Province of Zamboanga del Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused by means
of force and intimidation, did then and there willfully, unlawfully and feloniously
succeed in having carnal knowledge with one Norilyn Brigole a minor of ten (10)
years old against her will.
Act contrary to Article 335 of the Revised Penal Code.
CRIMINAL CASE NO. 2540
That on April 2, 1995 at Barangay Manlin, Municipality of Buug, Province of
Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused by means of force and intimidation did
then and there willfully, unlawfully and feloniously, have carnal knowledge with one
Norilyn Brigole a minor of 10 years old, against her will.
Act contrary to Article 335 of the Revised Penal Code as amended by R.A. 7659.
CRIMINAL CASE NO. 2541
That on March 5, 1995 at Barangay Manlin, Municipality of Buug, Province of
Zamboanga del Sur, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused by means of force and intimidation did then and there
willfully, unlawfully and feloniously have carnal knowledge with one Norilyn
Brigole a minor of ten (10) years old, against her will.
Act contrary to Article 335 of the Revised Penal Code as amended by R.A 7659.
The Case for the Appellant
198
 The appellant denied the charges. He testified that he was a fisherman,
and on those dates when he allegedly raped Norelyn, he was out at sea
fishing. From his house, it would take hours for one to get to Pamintayan
where he used to fish for Rudy Gamar. He was not aware of any reason why
Norelyn would charge him of rape. He had been very good to
Norelyn. Teodora filed the complaints against him because according to her,
the Barangay Captain threatened to send her to jail if she would not charge
the appellant with rape.
After due trial, the court rendered judgment, the decretal portion of
which reads:
Accordingly, judgment is hereby rendered finding the accused, LEVI SUMARAGO,
GUILTY, as principal, of the crime of Rape in these Criminal Cases Nos. 2537,
2538, 2539, 2540, and 2541, and sentences him to the capital punishment of
DEATH. He is further ordered to indemnify the victim Norelyn Brigole in the sum of
Two Hundred Fifty Thousand Pesos.
Let the records of these cases, including the transcript of stenographic notes, and
object evidence be forwarded to the Supreme Court within twenty days after
promulgation or notice of denial of any motion for new trial or reconsideration, for
its automatic review and judgment en banc.
SO ORDERED.[4]
The appellant assails the decision of the trial court contending that:
I Court has ruled that when a woman states that she has been raped, she
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
CONSUMMATED RAPE DESPITE THE UNCERTAINTY OF ITS
COMMISSION.
II
THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME
PENALTY OF DEATH DESPITE FAILURE OF THE PROSECUTION TO
ALLEGE THE RELATIONSHIP IN THE INFORMATION. [5]
On the first assignment of error, the appellant avers that the prosecution
failed to prove that he had carnal knowledge of Norelyn on March 5, 1995
because of the following: (1) Norelyn merely testified that the appellant boxed
her and when she regained consciousness, felt pains in her vagina and saw
that her right leg was bruised; (2) she was fully clothed when she awoke; and
(3) she only believed that the appellant raped her because her vagina was
painful.
As for the four other counts of rape, the appellant insists, Norelyns
account of the crimes charged are but mere general narrations, without
specific details of the events as they transpired. Her testimony that the
appellant raped her on March 13, 1995 is incredible because she admitted
that the appellant had sex with her only for a short time. Considering that, at
her tender age, her vagina had not yet developed, the appellant could not
have inserted his penis only for a short time. Moreover, the doctor testified
that she was unsure as to what had caused the hymenal laceration in
Norelyns vagina, and that it could have been caused by a finger or a stick.
We agree with the appellant that the prosecution failed to prove beyond
reasonable doubt that the appellant had carnal knowledge of Norelyn
on March 5, 1995.
For the accused to be held guilty of consummated rape, the prosecution
must prove beyond reasonable doubt that: (1) there had been carnal
knowledge of the victim by the accused; (2) the accused achieves the act
through force or intimidation upon the victim because the latter is deprived of
reason or otherwise unconscious.[6] Carnal knowledge of the victim by the
accused may be proved either by direct evidence or by circumstantial
evidence that rape had been committed and that the accused is the
perpetrator thereof. A finding of guilt of the accused for rape may be based
solely on the victims testimony if such testimony meets the test of
credibility. Corroborating testimony frequently unavailable in rape cases is
not indispensable to warrant a conviction of the accused for the crime. [7] This
says in effect all that would be necessary to show that rape did take
place. However, the testimony of the victim must be scrutinized with extreme
caution.The prosecutions evidence must stand or fall on its own merits.[8]
In People v. Campuhan,[9] we ruled that for the accused to be guilty of
consummated rape, there must be sufficient and convincing proof that the
penis, indeed, touched at least the labia majora or slid into the female organ
and not merely stroked the external surface thereof. The Court further ruled
that:
Thus, touching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the
external layer of the victims vagina, or the mons pubis . There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the female
organ and not merely stroked the external surface thereof for an accused to be
convicted of consummated rape. As the labias are required to be touched by the
penis, which are by their natural situs or location beneath the mons pubis or the
vaginal surface, to touch with the penis is to attain some degree of penetration
199
beneath the surface, hence, the conclusion that touching the labia Q : Your mother was not with you when you were gathering firewood?
majora or minora of the pudendumconstitutes consummated rape.[10] A : None (sic), sir.[11]
On clarificatory questions propounded by the trial court judge, Norelyn
The Court emphasized that absent any showing of the slightest testified as follows:
penetration of the female organ, i.e., touching of the labia of the pudendum
by the penis, there can be no consummated rape.
Q : After your stepfather boxed you, you said you lost your consciousness
and because you lost your consciousness, you dont know what happen[ed]
In this case, Norelyn testified that in the morning of March 5, 1998, the next, am I right?
appellant boxed her, rendering her unconscious. When she regained A : I dont know.
consciousness before noon, she had a severe headache. However, she still
had her clothes on. She suspected that the appellant had carnal knowledge Q : Is it not a fact that you were already wearing pants on March 5, 1995?
of her because her vagina was painful: A : Yes, sir.
Q : And at the time you regained your consciousness, your panty and your
Q : Now, where were you sometime in March 5, 1995? pants, you were still wearing (sic)?
A : I was at our house. A : Yes, sir.
Q : Who were your companions? Q : Including your dress?
A : My mother. A : Yes, sir.
Q : Aside from your mother? Q : In fact, you did not see any blood in your panty, is that correct?
A : My stepfather, Levi Sumarago. A : I have not seen.
Q : This Levi Sumarago is your stepfather? Q : Likewise, with your pants or clothes?
A : Yes, sir. A : There was none.
Q : What did he do in that noon of May 5? Q : There was also no blood on the shirt of your stepfather?
A : We were gathering firewood. A : There was no blood.
Q : And who was your companion in gathering firewood? Q : So after regaining your consciousness, your stepfather went home
A : My stepfather, sir. directly?
Q : And where did you proceed? A : Yes, sir.
A : In the land owned by Levi Sumarago. Q : You said that you were threatened on March 5, 1995? Warned you not
Q : Now, while gathering firewood, do you remember if there was an to tell anybody?
unusual incident that took place at that time? A : Yes, sir.
A : Yes, sir. Q : In fact, you were aware what happen[ed] to you when you lost your
Q : What was that unusual incident? consciousness, is that correct?
A : We went to a certain guava tree and then the accused Levi Sumarago hit A : Yes, sir, but I had a doubt because my vagina was painful.
me by (sic) his fist and then I lost my consciousness. Q : And that was the only reason why you doubted?
Q : After you were being (sic) hit by (sic) the fist of Levi Sumarago and as you A : Yes, sir.[12]
said you lost your consciousness after you regained your consciousness, COURT:
what have you observed? Was there a time in all these five incidents that you noticed in your body the
A : I felt dizzy, my head was aching so much and I felt pain on my vagina. presence of white substance in your vagina?
Q : And after you regained your consciousness and after having felt pain A : I did not notice.
from your head as well as from your vagina, what did Levi Sumarago do? Q : Did you clean yours after the incident that you were abused?
A : He told me, dont tell your mother about this because I will kill you. A : Yes, sir.
Q : Then after that, what happen[ed] next? Q : Did you wash your private part after each incident?
A : He ordered me to stand up because we will already go home.
200
A : I take (sic) a bath.
Q : And you did not notice any do you know the word sperm?
A : I dont know what is sperm.
Q : You did not notice any white substance or fluid when you were taking a
bath after its (sic) incident.
A : I did not.
Q : How long did the pain last in your vagina?
A : For a long time.[13]
There is no proof beyond reasonable doubt that the appellants penis
entered the labia of the pudendum of Norelyn. It is possible that while
Norelyn was unconscious, the appellant undressed her, removed her panties
and inserted his private organ into her vagina; and after satisfying himself,
put her clothes back on before she regained consciousness. But such
possibility is not synonymous with evidence. That the appellant had carnal
knowledge of Norelyn cannot be presumed simply because she felt pain in
her vagina when she regained consciousness, and that for over a period of
time, the appellant warned her not to tell anybody.
The appellant may not even be convicted of attempted rape under
Article 6 in relation to Article 335 of the Revised Penal Code because there is
no evidence that the appellant commenced by overt acts the commission of
the offense which had direct connection with the crime intended to be
committed but did not perform all the acts of execution which should produce
the felony.[14] There is no evidence that the appellant boxed Norelyn for the
purpose of raping her. The testimony of Dr. Avenida Vista that she found an
incomplete laceration on Norelyns hymen when she examined the child
on October 18, 1996 does not constitute proof that Norelyn sustained the
laceration on March 5, 1998. It bears stressing that the appellant raped
Norelyn four times afterMarch 5, 1995. She was examined by Dr. Vista only
after the said rapes. It is entirely possible that Norelyn sustained the
laceration on the subsequent dates: on March 13, 1995, March 24,
1995, April 2, 1995 and on April 11, 1995.
However, as regards the four other counts of rape, the prosecution,
through Norelyns testimony, mustered the requisite quantum of evidence to
prove consummated rape, thus:
Q : Now, after that incident, when was the second time that Levi Sumarago
rape you?
A : On March 13, 1995.
Q : And where did that happen?
A : In the banana plantation.
Q : And where was that banana plantation?
A : In the land of a certain Mejorcada.
Q : In what barangay is that land of Mejorcada located?
A : Barangay Manlin.
Q : What municipality?
A : Buug.
Q : Will you please narrate briefly what transpired on that date, March 13,
1995?
A : We were again gathering firewood together with my stepfather and he
told me to follow him because he would get banana from the banana
plantation so I followed him but he was lost immediately from my sight and
as I passed by the banana plantation, he immediately grabbed me.
Q : Who grabbed you?
A : My stepfather.
Q : After your stepfather grabbed you, what happen[ed] next?
A : He made me lie down, took off my panty and then that was the time I
shouted but he covered by (sic) mouth with his hands.
Q : After that, what happen[ed]?
COURT:
This time, you were not box[ed]?
A : Not (sic) sir.
Q : So, you were aware of what was happening to you?
A : Yes, sir.
Q : Now after your stepfather made you lie down on the ground and after
he removed your panty as well as your clothes, what did he do next?
A : He had sexual intercourse with me.
Q : What do you mean by sexual intercourse?
A : He mounted (sic) me and inserted his penis to my vagina.
Q : After your stepfather inserted his penis to your vagina, what did you
feel?
A : My vagina was very painful.
Q : Now, what did you do when you felt pain of what he has done with you
(sic)?
A : I was trying to shout but he was covering my mouth.
Q : In your own estimate, how long did Levi Sumarago [laid] himself on top
of you and inserted his penis in your vagina?
A : It was just for a short time he immediately stood up and advised me to
wear my panty.
Q : Now, after you were instructed to wear your panty, what happen[ed]
next?
A : He told me to stand up because we will already go home.
201
Q : Were you able to reach home that day?
A : Yes, sir.
Q : Did you see your mother in your house?
A : Yes, sir.
Q : And you mentioned that incident to your mother?
A : I did not.
Q : What is the reason again why you did not inform your mother about the
incident?
A : Because of his words that if I will tell my mother, he will kill me.
COURT:
Exactly what are the words he used?
A : Ayaw gyud ug sumbong kay kung mosumbong ka, patyong ta gyud ka.
Q : You were the one threatened by your stepfather?
A : I was the one.
Q : How about on March 15, 1995, what were the exact words of your
stepfather when you woke up.
A : Ayaw ug sumbong kay kung mosumbong ka, patyon ta gyud ka.
: Meaning, dont you ever tell, I would surely kill you.
Q : Now, can you still remember the third time Levi Sumarago sexually
abused you?
A : On March 24, 1995.
Q : And where did it take place?
A : At the guava tree.
Q : And where is that guava tree situated?
A : In the land owned by Moncada.
Q : And why were you there in that place?
A : We again gather[ed] firewood.
Q : Who were your companions?
A : Only my stepfather, sir, and myself.
Q : Other than you and your stepfather, was (sic) there other people in that
place?
A : None, sir.
Q : Will you kindly narrate before this Court what actually transpired on that
date on the said place?
A : Again, during that date, March 24, 1995, I went with my father to gather
firewood.While he was gathering firewood, I was waiting at the guava tree
and near the guava tree, there were grasses, after he gathered firewood, he
told me, please come near me but I did not because I already knew his
intention and because I did not go near him, he held my hand and brought
me to the bushes.
Q : When your stepfather again brought you to the bushes, what happened
next?
A : He again took off my panty and after that, he also took off his pants and
his underwear.
Q : After he took off your panty and he also took off his pants and
underwear, what happened next?
A : He attempted to have sexual intercourse with me and he mounted on
top of me and covering (sic) my mouth the time I tried to shout.
Q : When your stepfather was lying on top of you, what else did he do?
A : He inserted again his penis to my vagina and because of the pain, I was
trying to shout but I cannot because he was holding (sic) my mouth.
Q : How about your legs, did you not kick him?
A : No, I cannot because his legs were positioned on top of my legs.
Q : So his legs are (sic) pinning down your legs?
A : Yes, sir.
Q : Why did you not refuse going with your stepfather to gather firewood
this time?
A : Because according to him, there was no more firewood and if I will say
no, he will surely get mad.
Q : And when he gets mad of (sic) you, what would he do to you?
A : He would kick me.
Q : Is it not more painful to be raped than to be kicked?
A : Being raped is more painful.
COURT:
Proceed.
ATTY. LINGATING:
Now, after your stepfather Levi Sumarago succeeded in having sexual
intercourse against (sic) you, what happened next?
A : He again told me to wear my panty and stood up and he also wore his
own clothes and he advised me that we will already go home.
Q : Did you reach home that time?
A : Yes, sir.
Q : And you saw your mother inside your house?
A : Yes, sir.
Q : And what did you say to your mother about the incident?
A : I did not say anything.
Q : Why did you not say anything to your mother?
202
A : Because if I will tell my mother, he would kill me. A : My vagina was very painful.
Q : Do you think that your stepfather would really kill you if ever you will Q : After you felt pain, what did you do?
reveal to your mother? A : I shouted.
ATTY. BONGALOS: Q : Were you able to shout?
Objection. A : No because he was covering my mouth.
COURT: Q : For how long did your stepfather had sexual intercourse with you in that
Objection overruled. place and date?
A : Yes, sir. A : Just for a short time.
Q : What made you think so? Q : And after your stepfather did that, what happen[ed] next?
A : Because he really told me, you try to tell your mother, I will surely kill A : Again, he advised me to stand up because we will already go home.
you tonight. Q : When was the last time that your stepfather abused you?
Q : And you believe that? A : April 11, 1995.
A : Yes, sir. Q : And where did that incident take place?
Q : Now, when for the fourth time did your stepfather rape you? A : At Barangay Lantawan.
A : April 2, 1995. Q : Is Brgy. Lantawan a barangay?
Q : And where did that incident take place? A : Yes, sir.
A : At the Katagbakan located at the land of a certain Moncada. Q : Part of what municipality?
Q : What do you mean by katagbakan? A : The only thing I can remember, it is a barangay where the subanen
A : Im referring to a fruit named katagbak. reside, I do not know about the municipality.
Q : And where is that katagbakan located? Q : On April 11, 1995, he also asked you to accompany him to gather
A : In the land of Moncada. firewood?
Q : In what barangay? A : Yes, sir.
A : Manlin. Q : And, of course, you suspected that you will again be raped by your
Q : What municipality? stepfather?
A : Buug, ZDS. A : Yes, I believed I would again be abused.
Q : And what actually happened in that place at katagbakan? Q : And you did not do anything to prevent your going with him?
A : We again gathered firewood in the land of Moncada, this time, I was A : This time when he told me to go with him, I did something at home in
waiting for him at the katagbakan plantation and when he returned after he order to prevent myself to go with him and he told me, let your mother do
gathered firewood, he went near me and he again abused me. that.
Q : Did you not suspect that he would do or abuse you again this time? ATTY. LINGATING:
A : I thought about it. Why were you then in that place?
Q : Why did you not run away? A : To gather firewood.
A : Because of fear that if we will reach home, he would kill me. Q : And who are your companions?
Q : Now, how did he actually abuse you? A : Only the two of us.
A : He again took off his clothes and mounted on [top of] me and I shouted Q : Were you able to gather firewood?
but he held my mouth. A : Yes, sir.
Q : When your stepfather was on top of you, what happen[ed] next? Q : Now, after you were able to gather firewood, what happen[ed] next?
A : He again inserted his penis to my vagina. A : After gathering firewood, my stepfather told me that we will
Q : After that, what happen[ed]? get abaka to tie our firewood and when we reach[ed] a place where there

203
were tall grasses and he again ordered me to lie down and took off his
clothes and mine and he mounted on top of me.
Q : After your stepfather mounted himself on top of you, what did he do
next?
A : He inserted his penis to my vagina.
Q : After he inserted his penis to your vagina, what did you do?
A : I shouted.
Q : Were you able to shout?
A : No, because he covered my mouth with his hand.
Q : And when your father sexually abused you, what happened next?
A : After having sexually abused me, he told me to stand up because we
were about to go home.[15] (Emphases ours.)
The credibility of Norelyn and the probative weight of her testimony
cannot be assailed simply because of her admission that it took the appellant
only a short time to insert his penis into her vagina and to satiate his lust. The
mere entry of his penis into the labia of the pudendum, even if only for a
short while, is enough. Insofar as the consummation of the crime of rape is
concerned, the brevity of time that the appellant inserted his penis into the
victims vagina is of no particular importance. As this Court held in People v.
Nequia:[16]
[I]n rape cases, there are no half measures or even quarter measures, nor is their
gravity graduated by the inches of entry. Partial penile penetration is as serious as
full penetration. In either case, rape is deemed consummated. We further said that in
a manner of speaking, bombardment of the drawbridge is invasion enough even if the
troops do not succeed in entering the castle.[17]
The appellants assertion that the incomplete laceration in the hymen of
Norelyn could have been caused by a stick or a finger is clutching at
straws. In light of Norelyns straightforward, positive, and spontaneous
testimony that the appellant inserted his penis into her vagina on the four
occasions that she was raped, the appellants surmises cannot prevail.
Norelyn was less than eleven years old when the appellant raped
her. In People v. Castillo,[18] we held that in rape cases where the offended
parties are young and immature girls, there is considerable receptivity on the
part of this Court to lend credence to their testimonies, considering not only
their relative vulnerability but also the shame and embarrassment to which
such a grueling experience as a court trial, where they are called upon to lay
bare what perhaps should be shrouded in secrecy, did expose them
to. There is no showing that Norelyn was impelled by any ill-motive in
charging the appellant with a heinous crime. Hence, her testimony is entitled
to full faith and credence. No woman, much less a child, would willingly
submit herself to the rigors, the humiliation and the stigma attendant upon
the prosecution of rape, if she were not motivated by an earnest desire to put
the culprit behind bars. The appellants bare denial of the crime charged
cannot prevail over the positive testimony of Norelyn, corroborated by no less
than Dr. Vistas medical findings. The appellants claim that the charges
against him were but the concoction of Norelyns mother because of the
latters fear of being sent to jail by the Barangay Captain is flimsy. The
appellant failed to prove this assertion. The evidence on record shows that
when Norelyn told her mother she had been repeatedly raped by the
appellant, Teodora forthwith had her daughter examined by Dr. Vista and
thereafter filed a complaint for multiple rape against her common-law
husband.
On the second issue, the Office of the Solicitor General agrees with the
contention of the appellant that the trial court erroneously sentenced him to
suffer the death penalty despite the absence of any allegation in the
Informations that he was the victims stepfather.
We agree with the appellant and the Office of the Solicitor General that
the trial court erred in convicting the appellant four counts of rape in its
qualified form. Under Article 335 of the Revised Penal Code, as amended by
Republic Act No. 7659, the accused may be sentenced to death if rape is
committed under any of the following attendant circumstances:
The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.
The twin requisites of minority of the victim and her filiation with the
appellant or the fact that the appellant was the common-law husband of
Teodora, Norelyns mother, must be alleged in the Information as mandated
by Section 8, Rule 110 of the Revised Rules of Criminal Procedure and
proved by the prosecution.[19] Although the crimes were committed before the
effectivity of the new Rule, it should be applied retroactively, as the same is
favorable to the appellant.[20]
The stepfather-stepdaughter relationship presupposes a legitimate
relationship a valid marriage between the accused and the mother of the
private complainant. And the best evidence to prove the marriage between
the accused and the mother of the private complainant is their marriage
contract.[21] Norelyns bare testimony and that of her mother that the appellant
is her stepfather is insufficient evidence to prove such allegation. [22] No less
than the presiding judge of the trial court stated during the trial that the
204
appellant was merely Teodoras common-law husband.[23] In these cases, the THIRD DIVISION
Informations failed to allege that the appellant is the legal or common-law
husband of Teodora; or that he was Norelyns stepfather. Hence, the FELIX RAIT, G.R. No. 180425
appellant should be found guilty only of four counts of simple rape and not of Petitioner,
rape in its qualified form. Accordingly, the appellant should be sentenced to Present:
suffer the penalty of reclusion perpetua for each count of rape.
The appellant is liable to the victim Norelyn Brigole in the amount YNARES-SANTIAGO, J.,
of P50,000 as civil indemnity and P50,000 as moral damages for each count Chairperson,
of simple rape, or in the total amount of P400,000.[24] The appellant is also - versus - AUSTRIA-MARTINEZ,
liable to Norelyn in the amount of P25,000 for each count of rape, as CHICO-NAZARIO,
exemplary damages.[25] NACHURA, and
REYES, JJ.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional
Trial Court of Zamboanga del Sur, Branch 20, is AFFIRMED WITH
Promulgated:
MODIFICATION. The appellant Levi Sumarago is acquitted in Criminal Case
No. 2541 for failure of the prosecution to prove his guilt beyond reasonable THE PEOPLE OF THE PHILIPPINES,
doubt for the said crime charged therein. In Criminal Cases Nos. 2537 to Respondent. July 31, 2008
2540, the appellant is found guilty beyond reasonable doubt of four (4)
counts of simple rape under Article 335 of the Revised Penal Code, as x------------------------------------------------------------------------------------x
amended, by Republic Act No. 7659. He is sentenced to suffer the penalty
of reclusion perpetua for each count. He is ordered to pay the victim Norelyn
Brigole the amount of P50,000 as civil indemnity; P50,000 as moral RESOLUTION
damages; and P25,000 for each count of rape.
NACHURA, J.:
SO ORDERED.

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court seeking the reversal of the Court of Appeals (CA) Decision [1] in CA-G.R. CR No.
23276 dated January 26, 2006 and its Resolution[2] dated October 10, 2007. The
Court of Appeals upheld the Decision[3] of the Regional Trial Court (RTC) of Cagayan
de Oro City, Branch 20, wherein petitioner Felix Rait was convicted of attempted
rape.

On November 18, 2003, AAA[4] asked permission from her parents to go to her
brothers house in Nazareth Street to get her athletic pants. When she was there,
her brother requested her to buy cigarettes from a nearby store. While in the store,
petitioner Rait and one Janiter Pitago arrived. The two ordered beer and invited
AAA to join them. She initially refused. However, when Aurora Raez, another
neighbor, joined them, AAA was forced to drink beer. After drinking a glass of beer,
she became drunk. When she was feeling weak, petitioner and his co-accused
brought her out to 20th and 21st Streets where the petitioner and his co-accused
brought her to the side of the street and forcibly removed her pants and

205
underwear. Petitioner then forcibly inserted his finger into her vagina. AAA tried to
shout for help but petitioner covered her mouth while Pitago held her feet.
Petitioner was on top of her and about to insert his penis into her vagina but she
was able to kick both men and run away.[5]
AAA then went to her brothers house and related the incident to him. Her brother
went out to find petitioner. When AAAs brother did find petitioner, he tried to beat
petitioner with a stick but the latter ran away. AAA and her brother then went
home to their parents house in Tambo, Macasandig, Cagayan de Oro City and told
them what happened. At about 3:00 a.m. of November 19, AAA was accompanied
by her brother and stepmother to Operation Kahusay ug Kalinaw to report the
incident. They also went to Bombo Radyo to appeal for help in apprehending
petitioner. From there, they went to the Provincial Hospital for AAA to undergo
medical examination.[6] They then proceeded to the police station where the
incident was recorded on the police blotter under Entry No. 8085.[7]
On May 26, 1994, Rait and Pitago were charged in an Information, which reads:
That on or about November 19, 1993, at 2:00 oclock in the morning, more or less
(sic) at Nazareth, Cagayan de Oro City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating together
and mutually helping one another, did then and there, wilfully (sic), unlawfully and
feloniously commence the commission of the crime of Rape, directly by overt acts,
on the person of a [17-year-old] minor, [AAA], by then and there (sic), with force
and against the latters will while she was in a state of intoxication, touching her
breasts, removing her panty, holding her feet (by Janiter Pitago) and lying on top of
her (by Felix Rait), but did not perform all the acts of execution which would
produce the crime of Rape, by reason of some cause other than his own
spontaneous desistance, that in when (sic) offended party was able to kick them
and the two ran away.
Contrary to and in violation of Article 335 in relation to Article 6, of the Revised
Penal Code.
After trial, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, this court hereby finds the accused Felix Rait
guilty beyond reasonable doubt of the crime of Attempted Rape.
The basic penalty for Attempted Rape under Article 335 is two degrees lower than
Reclusion Perpetua or Prision Mayor in its full extent. Applying the Indeterminate
Sentence Law, the accused is entitled to a penalty lower to (sic) Prision Mayor or
that of Prision Correccional in its full extent, (sic) hence, accused FELIX RAIT is
sentenced to an Indeterminate Sentence of PRISION CORRECCIONAL in its medium
period as the minimum to PRISION MAYOR in its medium period as the maximum
under the same law.
The accused is entitled to his credit in full (sic) in his favor the period during which
he was under preventive imprisonment pending litigation.
Accused herein is further ordered to pay the complainant the sum of P20,000.00
pesos (sic) as indemnity for Attempted rape to the complainant (sic); P5,000.00
pesos (sic) for actual damages and expenses and to pay the costs.
SO ORDERED.[8]
Petitioner appealed the judgment to the CA-Cagayan de Oro. Petitioner alleged that
the RTC erred in: (1) giving credence to the prosecution witnesses despite their
inconsistent, contradictory and incredible testimonies; (2) in not finding that
petitioner was implicated in the case by reason of spite and vengeance; and (3) in
finding petitioner guilty beyond reasonable doubt of the crime of attempted rape
despite the failure of the prosecution to prove his guilt.[9]
The CA denied the appeal and affirmed the trial courts ruling in all
respects.[10] Petitioners motion for reconsideration was likewise denied.
Petitioner now comes before this Court on the following grounds:
THE HONORABLE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL
COURT CONVICTING THE PETITIONER FOR THE CRIME OF ATTEMPTED RAPE,
DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH THE LAW ON RAPE
AND JURISPRUDENCE ON THE MATTER.
THAT THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN [NOT
DOWNGRADING] THE CRIME OF ATTEMPTED RAPE TO ACTS OF LASCIVIOUSNESS IF
NOT THAT OF UNJUST VEXATION.[11]
Petitioner argues that he should be acquitted of the crime of attempted rape. If he
is to be found guilty of any offense, he puts forward the theory that based on this
Courts ruling in Baleros, Jr. v. People,[12] he should be convicted only of unjust
vexation.
The petition is bereft of merit. We deny the Petition for Review.
206

First, the findings of fact of the trial court, especially when affirmed by the CA, are
conclusive upon this Court. In this case, the trial court found the acts imputed to
petitioner to have been duly proven by the evidence beyond reasonable doubt. We
are bound by such finding.
On the strength of those proven facts, the next question is: what was the offense
committed?
Petitioner argues that this Courts ruling in Baleros is applicable to his case.
In Baleros, accused was convicted of attempted rape. The CA sustained the
conviction. Upon review, this Court reversed the conviction and found accused
guilty of light coercion. The Court declared:
Expounding on the nature of an attempted felony, the Court, speaking thru Justice
Claro M. Recto in People vs. Lamahang, stated that the attempt which the Penal
Code punishes is that which has a logical connection to a particular, concrete
offense; that which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. Absent the
unavoidable connection, like the logical and natural relation of the cause and its
effect, as where the purpose of the offender in performing an act is not certain,
meaning the nature of the act in relation to its objective is ambiguous, then what
obtains is an attempt to commit an indeterminate offense, which is not a juridical
fact from the standpoint of the Penal Code.
There is absolutely no dispute about the absence of sexual intercourse or carnal
knowledge in the present case. The next question that thus comes to the fore is
whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked
cloth while on top of Malou, constitutes an overt act of rape.
Overt or external act has been defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.
Harmonizing the above definition to the facts of this case, it would be too strained
to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of
Malou which would induce her to sleep as an overt act that will logically and
necessarily ripen into rape. As it were, petitioner did not commence at all the
performance of any act indicative of an intent or attempt to rape Malou. It cannot
be overemphasized that petitioner was fully clothed and that there was no attempt
on his part to undress Malou, let alone touch her private part. For what reason
petitioner wanted the complainant unconscious, if that was really his immediate
intention, is anybodys guess. The CA maintained that if the petitioner had no
intention to rape, he would not have lain on top of the complainant. Plodding on,
the appellate court even anticipated the next step that the petitioner would have
taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come
later. His sexual organ is not yet exposed because his intended victim is still
struggling. Where the intended victim is an educated woman already mature in
age, it is very unlikely that a rapist would be in his naked glory before even starting
his attack on her. He has to make her lose her guard first, or as in this case, her
unconsciousness.
At bottom then, the appellate court indulges in plain speculation, a practice
disfavored under the rule on evidence in criminal cases. For, mere speculations and
probabilities cannot substitute for proof required to establish the guilt of an
accused beyond reasonable doubt.
xxxx
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under
the premises, of any wrongdoing whatsoever. The information filed against
petitioner contained an allegation that he forcefully covered the face of Malou with
a piece of cloth soaked in chemical. And during the trial, Malou testified about the
pressing against her face of the chemical-soaked cloth and having struggled after
petitioner held her tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape, as earlier discussed,
they constitute unjust vexation punishable as light coercion under the second
paragraph of Article 287 of the Revised Penal Code. In the context of the
constitutional provision assuring an accused of a crime the right to be informed of
the nature and cause of the accusation, it cannot be said that petitioner was kept in
the dark of the inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to make his
defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to
allege malice, restraint or compulsion in information for unjust vexation. As it were,
unjust vexation exists even without the element of restraint or compulsion for the
reason that this term is broad enough to include any human conduct which,
although not productive of some physical or material harm, would unjustly annoy or
irritate an innocent person. The paramount question is whether the offenders act
causes annoyance, irritation, torment, distress or disturbance to the mind of the
person to whom it is directed. That Malou, after the incident in question, cried
207
while relating to her classmates what she perceived to be a sexual attack and the a causal relation to the intended crime. In the words of Viada, the overt acts must
fact that she filed a case for attempted rape proved beyond cavil that she was have an immediate and necessary relation to the offense.[16]
disturbed, if not distressed by the acts of petitioner.[13]

Thus, we find that petitioner was correctly convicted of attempted rape.

We are not persuaded by petitioners argument. Several facts attendant to this case
distinguish it from Baleros, enough to convince us to arrive at a different A final observation. We note that the trial courts Decision sentenced petitioner to a
conclusion. prison term without specifying the period this sentence covers. We will rectify this
error even as we affirm petitioners conviction.
Unlike in Baleros, the acts of petitioner clearly establish his intention to commence
the act of rape. Petitioner had already successfully removed the victims clothing The penalty for attempted rape is prision mayor, or two degrees lower
and had inserted his finger into her vagina. It is not empty speculation to conclude thanreclusion perpetua, the penalty for consummated rape. Petitioner should be
that these acts were preparatory to the act of raping her. Had it not been for the sentenced to an indeterminate sentence the minimum of which is in the range
victims strong physical resistance, petitioners next step would, logically, be having of prision correccional, or within six months and one day to six years, and the
carnal knowledge of the victim. The acts are clearly the first or some subsequent maximum of which is prision mayor medium, or within eight years and one day to
step in a direct movement towards the commission of the offense after the ten years. In this case, the trial court sentenced petitioner to an Indeterminate
preparations are made.[14] Sentence of PRISION CORRECCIONAL in its medium period, as the minimum,
to PRISION MAYOR in its medium period, as the maximum.
Under Article 6, in relation to Article 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape directly by overt WHEREFORE, the foregoing premises considered, the Court of Appeals Decision in
acts, and does not perform all the acts of execution which should produce the crime CA-G.R. CR No. 23276 dated January 26, 2006 and its Resolution dated October 10,
of rape by reason of some cause or accident other than his own spontaneous 2007 affirming petitioners conviction for ATTEMPTED RAPEare AFFIRMED WITH
desistance.[15] MODIFICATION. The petitioner is sentenced to an indeterminate sentence of two
(2) years, four (4) months, and one (1) day of prision correccional medium, as
This Court has held that an overt or external act - minimum, to ten (10) years of prision mayormedium, as its maximum. In all other
respects, the trial courts Decision is AFFIRMED.
is defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to SO ORDERED.
its complete termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. The raison detre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the accused
consisting merely of acts of preparation has never ceased to be equivocal; and this
is necessarily so, irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one which may be said to be
a commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason that
so long as the equivocal quality remains, no one can say with certainty what the
intent of the accused is. It is necessary that the overt act should have been the
ultimate step towards the consummation of the design. It is sufficient if it was the
first or some subsequent step in a direct movement towards the commission of the
offense after the preparations are made. The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt must have

208

SECOND DIVISION
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails
and seeks the reversal of the January 13, 1999 decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999
resolution2 denying petitioner’s motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court
(RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner
Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3
The accusatory portion of the information4 dated December 17, 1991
charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991
in Manila and within the jurisdiction of this Honorable Court, the above-
named accused, by forcefully covering the face of Martina Lourdes T. Albano
with a piece of cloth soaked in chemical with dizzying effects, did then and
there willfully, unlawfully and feloniously commenced the commission of rape
by lying on top of her with the intention to have carnal knowledge with her but
was unable to perform all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance, said acts being
committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel,
pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among
them were private complainant Martina Lourdes Albano (Malou), and her
classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and
Christian Alcala. Their testimonies, as narrated in some detail in the decision
of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building",
…) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room
307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the
University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around
10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept
on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of
chemical on a piece of cloth pressed on her face. She struggled but could not
move. Somebody was pinning her down on the bed, holding her tightly. She
wanted to scream for help but the hands covering her mouth with cloth wet
with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU
continued fighting off her attacker by kicking him until at last her right hand
got free. With this …the opportunity presented itself when she was able to
grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and
roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that: "may
pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did
not, however, know. The only thing she had made out during their struggle
was the feel of her attacker’s clothes and weight. His upper garment was of
cotton material while that at the lower portion felt smooth and satin-like (Ibid,
p. 17). He … was wearing a t-shirt and shorts … Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard
Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then
proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was
stained with blue … (TSN, July 5, 1993, pp. 13-14). Aside from the window
with grills which she had originally left opened, another window inside her
bedroom was now open. Her attacker had fled from her room going through
the left bedroom window (Ibid, Answers to Question number 5; Id), the one
without iron grills which leads to Room 306 of the Building (TSN, July 5,
1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her
classmate …, was friendly until a week prior to the attack. CHITO confided
his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p.
22) and she rejected him. …. (TSN, July 5, 1993, p. 22).
209
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at
the Building at 1:30 in the early morning of December 13, 1991, wearing a
white t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek
letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine
and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand
name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go
up to Room 306. This Unit was being leased by Ansbert Co and at that time
when CHITO was asking permission to enter, only Joseph Bernard Africa
was in the room.
He asked CHITO to produce the required written authorization and when
CHITO could not, S/G Ferolin initially refused [but later, relented] …. S/G
Ferolin made the following entry in the security guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a
Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter
(sic) for the reason that he will be our tenant this coming summer break as
he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was
corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of
December 12, 1991. xxx by the time CHITO’s knocking on the door woke him
up, …. He was able to fix the time of CHITO’s arrival at 1:30 A.M. because
he glanced at the alarm clock beside the bed when he was awakened by the
knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and white T-
shirt (Ibid., p. 23) when he let the latter in. …. It was at around 3 o’clock in
the morning of December 13, 1991 when he woke up again later to the
sound of knocking at the door, this time, by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was
shown by Bernard the open window through which the intruder supposedly
passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was
finally able to talk to CHITO …. He mentioned to the latter that something
had happened and that they were not being allowed to get out of the building.
Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray
bag. xxx. None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the others were there.
xxx.
People from the CIS came by before 8 o’clock that same morning …. They
likewise invited CHITO and Joseph to go with them to Camp Crame where
the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court
that in the afternoon of December 13, 1991, after their 3:30 class, he and his
roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the
Building and were asked by the CIS people to look for anything not belonging
to them in their Unit. While they were outside Room 310 talking with the
authorities, Rommel Montes (Loyloy), another roommate of his, went inside
to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray
"Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they
did not know was there and surrender the same to the investigators. When
he saw the gray bag, Christian knew right away that it belonged to CHITO
(Ibid, p. 55) as he had seen the latter usually bringing it to school inside the
classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among
others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black
Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear,
and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit
"D-5"), and the handkerchief (Exhibit "D-3) to be CHITO’s because CHITO
had lent the very same one to him …. The t-shirt with CHITO’s fraternity
symbol, CHITO used to wear on weekends, and the handkerchief he saw
CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13,
1991, was what consisted mainly of Renato R. Alagadan’s testimony.
xxx xxx xxx.
210
The colored gray bag had a handle and a strap, was elongated to about 11/4
feet and appeared to be full but was closed with a zipper when Renato saw it
then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went
back to Room 310 at around 3 to 4 o’clock that afternoon along with some
CIS agents, they saw the bag at the same place inside the bedroom where
Renato had seen CHITO leave it. Not until later that night at past 9 o’clock in
Camp Crame, however, did Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police
Crime Laboratory in Camp Crame, having acted in response to the written
request of PNP Superintendent Lucas M. Managuelod dated December 13,
1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted…. Her Chemistry
Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic
poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave
the following results:
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket
added)
For its part, the defense presented, as its main witness, the petitioner
himself. He denied committing the crime imputed to him or making at any
time amorous advances on Malou. Unfolding a different version of the
incident, the defense sought to establish the following, as culled from the
same decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST). With
Robert Chan and Alberto Leonardo, he was likewise a member of the Tau
Sigma Phi Fraternity …. MALOU, …, was known to him being also a medical
student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the
prescribed barong tagalog over dark pants and leather shoes, arrived at their
Fraternity house located at … Dos Castillas, Sampaloc, Manila at about 7
o’clock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas
gathering at the house of their senior fraternity brother, Dr. Jose Duran, at
No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon
after, … the four (4) presidential nominees of the Fraternity, CHITO included,
were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and
long pants when he was dunked. Perla Duran, …, offered each … dry
clothes to change into and CHITO put on the white t-shirt with the Fraternity’s
symbol and a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt
with the symbol TAU Sigma Phi, black short pants with stripe, socks and
shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan
and Alberto at more or less past 1 A.M. of December 13, 1991 and
211
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p.
19). He had left his gray traveling bag containing "white t-shirt, sando,
underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the
afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at
his watch, approached. Because of this, CHITO also looked at his own watch
and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused
CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in,
already about ten (10) minutes had lapsed since CHITO first arrived (Ibid., p.
25).
CHITO went up the floor, found the key left for him by Joseph behind the
opened jalousie window and for five (5) minutes vainly tried to open the door
until Rommel Montes, … approached him and even commented: "Okey ang
suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to
open the door of Unit 306 … but was likewise unsuccessful. CHITO then
decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at
last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph
immediately turned his back on CHITO and went inside the bedroom. CHITO
, …changed to a thinner shirt and went to bed. He still had on the same short
pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p.
20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He
was already in his school uniform when, around 6:30 A.M, Joseph came to
the room not yet dressed up. He asked the latter why this was so and,
without elaborating on it, Joseph told him that something had happened and
to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom
MALOU was not able to identify, went to the room of MALOU and tried to
rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the
Building …. When two (2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father
of MALOU, then asked him for the key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was
told to dress up and the two (2) of them, CHITO and Joseph, were brought to
Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside
his room and talked to him for 30 minutes. xxx. No one interviewed CHITO to
ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later
instructed them to undergo physical examination at the Camp Crame
Hospital ….. At the hospital, … CHITO and Joseph were physically examined
by a certain Dr. de Guzman who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped
short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p.
345), inside Room 310 at more/less 6:30 to 7 o’clock in the morning of
December 13, 1991. The next time that he saw it was between 8 to 9 P.M.
when he and Joseph were brought before Fiscal Abesamis for inquest. One
of the CIS agents had taken it there and it was not opened up in his presence
but the contents of the bag were already laid out on the table of Fiscal
Abesamis who, however, made no effort to ask CHITO if the items thereat
were his.
The black Adidas short pants purportedly found in the bag, CHITO denied
putting in his gray bag which he had left at Room 306 in the early evening of
December 12, 1991 before going to the fraternity house. He likewise
disavowed placing said black Adidas short pants in his gray bag when he
returned to the apartment at past 1:00 o’clock in the early morning of
December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at
about 6 o’clock in the morning to go to school and brought his gray bag to
Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short Adidas pants (Ibid).
He only found out for the first time that the black Adidas short pants was
alluded to be among the items inside his gray bag late in the afternoon, when
he was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s fraternity
brothers, Alberto Leonardo and Robert Chan, who both testified being with
CHITO in the December 12, 1991 party held in Dr. Duran’s place at
Greenhills, riding on the same car going to and coming from the party and
dropping the petitioner off the Celestial Marie building after the party. Both
212
were one in saying that CHITO was wearing a barong tagalog, with t-shirt
inside, with short pants and leather shoes at the time they parted after the
party.7 Rommel Montes, a tenant of Room 310 of the said building, also
testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of
December 13, 1991 trying to open the door of Room 306 while clad in dark
short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of
short pants with stripes after the dunking party held in her father’s
house.8 Presented as defense expert witness was Carmelita Vargas, a
forensic chemistry instructor whose actual demonstration in open court
showed that chloroform, being volatile, evaporates in thirty (30) seconds
without tearing nor staining the cloth on which it is applied.9
On December 14, 1994, the trial court rendered its decision10 convicting
petitioner of attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the
Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond
reasonable doubt of the crime of attempted rape as principal and as charged
in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of
Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as
Maximum, with all the accessory penalties provided by law, and for the
accused to pay the offended party Martina Lourdes T. Albano, the sum of
P50,000.00 by way of Moral and exemplary damages, plus reasonable
Attorney’s fees of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was
docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated
January 13, 1999, affirmed the trial court’s judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings
of the court a quo, the decision appealed from is hereby AFFIRMED in toto.
Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in
its equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed
the attempted rape imputed to him, absent sufficient, competent and
convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of
circumstantial evidence since the prosecution failed to satisfy all the
requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the
petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact
that the award was improper and unjustified absent any evidence to
prove the same.
6. In failing to appreciate in his favor the constitutional presumption
of innocence and that moral certainty has not been met, hence, he
should be acquitted on the ground that the offense charged against
him has not been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on
whether or not the CA erred in affirming the ruling of the RTC finding
petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of
applicable jurisprudence, the Court is disposed to rule for petitioner’s
acquittal, but not necessarily because there is no direct evidence pointing to
him as the intruder holding a chemical-soaked cloth who pinned Malou down
on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to
that of being an eyewitness to the very act of commission of the crime. There
are two types of positive identification. A witness may identify a suspect or
accused as the offender as an eyewitness to the very act of the commission
of the crime. This constitutes direct evidence. There may, however, be
instances where, although a witness may not have actually witnessed the
very act of commission of a crime, he may still be able to positively identify a
213
suspect or accused as the perpetrator of a crime as when, for instance, the
latter is the person or one of the persons last seen with the victim
immediately before and right after the commission of the crime. This is the
second type of positive identification, which forms part of circumstantial
evidence.13 In the absence of direct evidence, the prosecution may resort to
adducing circumstantial evidence to discharge its burden. Crimes are usually
committed in secret and under condition where concealment is highly
probable. If direct evidence is insisted under all circumstances, the
prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when
circumstantial evidence may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is
sufficient for conviction if –
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of
circumstantial evidence, which, when taken together with the other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that petitioner was the intruder in question.
We quote with approval the CA’s finding of the circumstantial evidence that
led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had
access to the room of MALOU as Room 307 where he slept the night over
had a window which allowed ingress and egress to Room 306 where MALOU
stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard
Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and
fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle,
MALOU had made out the feel of her intruder’s apparel to be something
made of cotton material on top and shorts that felt satin-smooth on the
bottom.
From CHITO’s bag which was found inside Room 310 at the very spot where
witness Renato Alagadan saw CHITO leave it, were discovered the most
incriminating evidence: the handkerchief stained with blue and wet with some
kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-
shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by
MALOU during the incident revealed that the handkerchief and MALOU’s
night dress both contained chloroform, a volatile poison which causes first
degree burn exactly like what MALOU sustained on that part of her face
where the chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the
prosecution has established beyond reasonable doubt the guilt of the
petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face
the piece of cloth soaked in chemical while holding her body tightly under the
weight of his own, had commenced the performance of an act indicative of
an intent or attempt to rape the victim. It is argued that petitioner’s actuation
thus described is an overt act contemplated under the law, for there can not
be any other logical conclusion other than that the petitioner intended to
ravish Malou after he attempted to put her to an induced sleep. The Solicitor
General, echoing what the CA said, adds that if petitioner’s intention was
otherwise, he would not have lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man
who has carnal knowledge or intercourse with a woman under any of the
following circumstances: (1) By using force or intimidation; (2) When the
woman is deprived of reason or otherwise unconscious; and (3) When the
woman is under twelve years of age or is demented. Under Article 6, in
relation to the aforementioned article of the same code, rape is attempted
when the offender commences the commission of rape directly by overt acts
and does not perform all the acts of execution which should produce the
crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru
Justice Claro M. Recto in People vs. Lamahang,17 stated that "the attempt
which the Penal Code punishes is that which has a logical connection to a
particular, concrete offense; that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization
and consummation." Absent the unavoidable connection, like the logical and
natural relation of the cause and its effect, as where the purpose of the
offender in performing an act is not certain, meaning the nature of the act in
214
relation to its objective is ambiguous, then what obtains is an attempt to
commit an indeterminate offense, which is not a juridical fact from the
standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual intercourse or
carnal knowledge in the present case. The next question that thus comes to
the fore is whether or not the act of the petitioner, i.e., the pressing of a
chemical-soaked cloth while on top of Malou, constitutes an overt act of
rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too
strained to construe petitioner's act of pressing a chemical-soaked cloth in
the mouth of Malou which would induce her to sleep as an overt act that will
logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or attempt
to rape Malou. It cannot be overemphasized that petitioner was fully clothed
and that there was no attempt on his part to undress Malou, let alone touch
her private part. For what reason petitioner wanted the complainant
unconscious, if that was really his immediate intention, is anybody’s guess.
The CA maintained that if the petitioner had no intention to rape, he would
not have lain on top of the complainant. Plodding on, the appellate court
even anticipated the next step that the petitioner would have taken if the
victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to
come later. His sexual organ is not yet exposed because his intended victim
is still struggling. Where the intended victim is an educated woman already
mature in age, it is very unlikely that a rapist would be in his naked glory
before even starting his attack on her. He has to make her lose her guard
first, or as in this case, her unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice
disfavored under the rule on evidence in criminal cases. For, mere
speculations and probabilities cannot substitute for proof required to
establish the guilt of an accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the
crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to
produce the felony. Thus, for there to be an attempted rape, the accused
must have commenced the act of penetrating his sexual organ to the vagina
of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing her,
mashing her breasts, inserting his hand inside her panty and touching her
sexual organ, while admittedly obscene and detestable acts, do not
constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito Onio
arrived at the alleged locus criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that mere holding of the feet is
attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent,
under the premises, of any wrongdoing whatsoever. The information filed
against petitioner contained an allegation that he forcefully covered the face
of Malou with a piece of cloth soaked in chemical. And during the trial, Malou
testified about the pressing against her face of the chemical-soaked cloth
and having struggled after petitioner held her tightly and pinned her down.
Verily, while the series of acts committed by the petitioner do not determine
attempted rape, as earlier discussed, they constitute unjust vexation
punishable as light coercion under the second paragraph of Article 287 of the
Revised Penal Code. In the context of the constitutional provision assuring
an accused of a crime the right to be informed of the nature and cause of the
accusation,24 it cannot be said that petitioner was kept in the dark of the
inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to
make his defense. As aptly observed by then Justice Ramon C. Aquino,
there is no need to allege malice, restraint or compulsion in an information for
unjust vexation. As it were, unjust vexation exists even without the element of
restraint or compulsion for the reason that this term is broad enough to
include any human conduct which, although not productive of some physical
or material harm, would unjustly annoy or irritate an innocent person.25 The
paramount question is whether the offender’s act causes annoyance,
irritation, torment, distress or disturbance to the mind of the person to whom
it is directed.26 That Malou, after the incident in question, cried while relating
to her classmates what she perceived to be a sexual attack and the fact that
215
she filed a case for attempted rape proved beyond cavil that she was June 21, 2007
disturbed, if not distressed by the acts of petitioner.
x----------------------------------------------------------------------------x
The penalty for coercion falling under the second paragraph of Article 287 of
the Revised Penal Code is arresto menor or a fine ranging from ₱5.00 to
₱200.00 or both. DECISION

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of
the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE
and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the
charge for attempted rape. Petitioner, however, is adjudged GUILTY of light
coercion and is accordingly sentenced to 30 days of arresto menor and to
pay a fine of ₱200.00, with the accessory penalties thereof and to pay the
costs.
SO ORDERED.
EN BANC
ARISTOTEL VALENZUELA y G. R. No. 160188
NATIVIDAD,
Petitioner, Present:
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed
against him, but instead insists that as a result, he should be adjudged guilty of
frustrated theft only, not the felony in its consummated stage of which he was
convicted. The proposition rests on a common theory expounded in two well-
known decisions[1] rendered decades ago by the Court of Appeals, upholding the
existence of frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this Court.
As far as can be told,[2] the last time this Court extensively considered whether an
accused was guilty of frustrated or consummated theft was in 1918, in People v.
Adiao.[3] A more cursory

PUNO, C.J., treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in
QUISUMBING, 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and fully
SANTIAGO, measure if or how frustrated theft is susceptible to commission under the Revised
- versus - GUTIERREZ, Penal Code.
CARPIO,
MARTINEZ, I.
CORONA,
CARPIO MORALES, The basic facts are no longer disputed before us. The case stems from an
AZCUNA, Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy
TINGA, Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
CHICO-NAZARIO, petitioner and Calderon were sighted outside the Super Sale Club, a supermarket
GARCIA, within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a
VELASCO, and security guard who was then manning his post at the open parking area of the
PEOPLE OF THE PHILIPPINES NACHURA, JJ. supermarket. Lago saw petitioner, who was wearing an identification card with the
and HON. COURT OF APPEALS, mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent
Respondents. of the well-known Tide brand. Petitioner unloaded these cases in an open parking
Promulgated: space, where Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons of Tide

216
Ultramatic and again unloaded these boxes to the same area in the open parking
space.[7]
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded
the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these
acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open
parking area. When Lago asked petitioner for a receipt of the merchandise,
petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to
alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. [8]The filched
items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case
of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an
aggregate value of P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security office before they
were transferred on the same day to the Baler Station II of the Philippine National
Police, Quezon City, for investigation. It appears from the police investigation
records that apart from petitioner and Calderon, four (4) other persons were
apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter
was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club
on the afternoon of 19 May 1994 when they were haled by Lago and his fellow
security guards after a commotion and brought to the Baler PNP Station. Calderon
alleged that on the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to
buy snacks inside the supermarket. It was
while they were eating that they heard thegunshot fired by
Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly grabbed by a security guard,
thus commencing their detention.[12] Meanwhile, petitioner testified during trial
that he and his cousin, a Gregorio Valenzuela,[13] had been at the parking lot,
walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-
asa, when they saw the security guard Lago fire a shot. The gunshot caused him and
the other people at the scene to start running, at which point he was apprehended
by Lago and brought to the security office. Petitioner claimed he was detained at
the security office until around 9:00 p.m., at which time he and the others were
brought to the Baler Police Station. At the station, petitioner denied having stolen
the cartons of detergent, but he was detained overnight, and eventually brought to
the prosecutors office where he was charged with theft.[14]During petitioners cross-
examination, he admitted that he had been employed as a bundler of GMS
Marketing, assigned at the supermarket though not at SM.[15]
In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC)
of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate prison term of two
(2) years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.[17] The RTC found credible the testimonies of the prosecution witnesses
and established the convictions on the positive identification of the accused as
perpetrators of the crime.
Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a
brief[19] with the Court of Appeals, causing the appellate court to deem Calderons
appeal as abandoned and consequently dismissed. Before the Court of Appeals,
petitioner argued that he should only be convicted of frustrated theft since at the
time he was apprehended, he was never placed in a position to freely dispose of the
articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of
Appeals rejected this contention and affirmed petitioners conviction. [22] Hence the
present Petition for Review,[23] which expressly seeks that petitioners conviction be
modified to only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner effectively conceded both
his felonious intent and his actual participation in the theft of several cases of
detergent with a total value of P12,090.00 of which he was charged.[25] As such,
there is no cause for the Court to consider a factual scenario other than that
presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The
only question to consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites[26]two decisions rendered many years ago by the Court of Appeals: People v.
Dio[27]and People v. Flores.[28] Both decisions elicit the interest of this Court, as they
217
modified trial court convictions from consummated to frustrated theft and involve a
factual milieu that bears similarity to the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio and Flores rulings since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass
before us. Yet despite the silence on our part, Dio and Flores have attained a level of
renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law
annotations,[29] and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful
scenarios that populate criminal law exams more than they actually occur in real
life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could
profoundly influence a multitude of routine theft prosecutions, including
commonplace shoplifting. Any scenario that involves the thief having to exit with
the stolen property through a supervised egress, such as a supermarket checkout
counter or a parking area pay booth, may easily call for the application
of Dio and Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Dio and Flores and the
theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those
theories are correct and should continue to influence prosecutors and judges in the
future.
III.
To delve into any extended analysis of Dio and Flores, as well as the specific issues
relative to frustrated theft, it is necessary to first refer to the basic rules on the
three stages of crimes under our Revised Penal Code.[30]
Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated when all the elements necessary for
its execution and accomplishment are present. It is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. Finally, it is attempted when the
offender commences the commission of a felony directly by overt acts, and does
not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase, or that portion of
the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime.[31] After that point has been
breached, the subjective phase ends and the objective phase begins.[32] It has been
held that if the offender never passes the subjective phase of the offense, the crime
is merely attempted.[33] On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is
complete.[34]
Truly, an easy distinction lies between consummated and frustrated felonies on one
hand, and attempted felonies on the other. So long as the offender fails to
complete all the acts of execution despite commencing the commission of a felony,
the crime is undoubtedly in the attempted stage. Since the specific acts of
execution that define each crime under the Revised Penal Code are generally
enumerated in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by the accused
as against the acts that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been
performed by the offender. The critical distinction instead is whether the felony
itself was actually produced by the acts of execution. The determination of whether
the felony was produced after all the acts of execution had been performed hinges
on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while
the elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.
The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an
important characteristic of a crime, that ordinarily, evil intent must unite with an
unlawful act for there to be a crime, and accordingly, there can be no crime when
the criminal mind is wanting.[35] Accepted in this jurisdiction as material in
crimes mala in se,[36] mens rea has been defined before as a guilty mind, a guilty or
wrongful purpose or criminal intent,[37] and essential for criminal liability.[38]It
218
follows that the statutory definition of our mala in se crimes must be able to supply
what the mens rea of the crime is, and indeed the U.S. Supreme Court has
comfortably held that a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights.[39] The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal
law, it is not enough that mens rea be shown; there must also be an actus reus.[40]
It is from the actus reus and the mens rea, as they find expression in the criminal
statute, that the felony is produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is embedded which attests when
the felony is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase shall kill another, thus
making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised
Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with
intent to gain but without violence against or intimidation of persons nor force
upon things, shall take personal property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the
local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall
remove or make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner, shall
hunt or fish upon the same or shall gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and
highly idiosyncratic means by which theft may be committed.[41] In the present
discussion, we need to concern ourselves only with the general definition since it
was under it that the prosecution of the accused was undertaken and sustained. On
the face of the definition, there is only one operative act of execution by the actor
involved in theft ─ the taking of personal property of another. It is also clear from
the provision that in order that such taking may be qualified as theft, there must
further be present the descriptive circumstances that the taking was with intent to
gain; without force upon things or violence against or intimidation of persons; and it
was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as provided for in
Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence against or intimidation
of persons or force upon things.[42]
In his commentaries, Judge Guevarra traces the history of the definition of theft,
which under early Roman law as defined by Gaius, was so broad enough as to
encompass any kind of physical handling of property belonging to another against
the will of the owner,[43] a definition similar to that by Paulus that a thief handles
(touches, moves) the property of another.[44] However, with the Institutes of
Justinian, the idea had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object, thus: [f]urtum est
contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful
taking, to characterize theft. Justice Regalado notes that the concept
of apoderamiento once had a controversial interpretation and application. Spanish
law had already discounted the belief that mere physical taking was constitutive
of apoderamiento, finding that it had to be coupled with the intent to appropriate
the object in order to constitute apoderamiento; and to appropriate means to
deprive the lawful owner of the thing.[47] However, a conflicting line of cases
decided by the Court of Appeals ruled, alternatively, that there must be
permanency in the taking[48] or an intent to permanently deprive the owner of the
stolen property;[49] or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the
proprietary rights of the owner already constituted apoderamiento.[50] Ultimately,
as Justice Regalado notes, the Court adopted the latter thought that there was no
need of an intent to permanently deprive the owner of his property to constitute an
unlawful taking.[51]
219

So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative act
that is the taking of personal property of another establishes, at least, that the
transgression went beyond the attempted stage. As applied to the present case, the
moment petitioner obtained physical possession of the cases of detergent and
loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales Club,
petitioner forfeited the extenuating benefit a conviction for only attempted theft
would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are
obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.
Following that provision, the theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to produce theft as a consequence,
do not produce [such theft] by reason of causes independent of the will of the
perpetrator. There are clearly two determinative factors to consider: that the felony
is not produced, and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each
particular case. The first, however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised Penal Code[52] as to when a
particular felony is not produced, despite the commission of all the acts of
execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is
necessary to inquire as to how exactly is the felony of theft produced. Parsing
through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law that theft is already produced upon the
tak[ing of] personal property of another without the latters consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign
national and secreted the item in his desk at the Custom House. At no time was the
accused able to get the merchandise out of the Custom House, and it appears that
he was under observation during the entire transaction.[54] Based apparently on
those two circumstances, the trial court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that all
the elements of the completed crime of theft are present. [55] In support of its
conclusion that the theft was consummated, the Court cited three (3) decisions of
the Supreme Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another.
As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not
appear that he was at that moment caught by the policeman but sometime later.
The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as
that of consummated theft instead of frustrated theft inasmuch as nothing appears
in the record showing that the policemen who saw the accused take the fruit from
the adjoining land arrested him in the act and thus prevented him from taking full
possession of the thing stolen and even its utilization by him for an interval of time."
(Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing
mass in a church. The latter on account of the solemnity of the act, although
noticing the theft, did not do anything to prevent it. Subsequently, however, while
the defendant was still inside the church, the offended party got back the money
from the defendant. The court said that the defendant had performed all the acts of
execution and considered the theft as consummated. (Decision of the Supreme
Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key
opened up a case, and from the case took a small box, which was also opened with
a key, from which in turn he took a purse containing 461 reales and 20 centimos,
and then he placed the money over the cover of the case; just at this moment he
was caught by two guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The accused [x x x]
having materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent to
appropriate the same, he executed all the acts necessary to constitute the crime
which was thereby produced; only the act of making use of the thing having been
frustrated, which, however, does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited
therein, that the criminal actors in all these cases had been able to obtain full
possession of the personal property prior to their apprehension. The interval
between the commission of the acts of theft and the apprehension of the thieves
did vary, from sometime later in the 1898 decision; to the very moment the thief
had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the
building where the theft took place, as had happened in Adiao and the 1897
220
decision. Still, such intervals proved of no consequence in those cases, as it was
ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only
of frustrated rather than consummated theft. The case is People v.
Sobrevilla,[57]where the accused, while in the midst of a crowd in a public market,
was already able to abstract a pocketbook from the trousers of the victim when the
latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and
let go of the defendant, who was afterwards caught by a policeman. [58] In rejecting
the contention that only frustrated theft was established, the Court simply said,
without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking
the pocket-book, and that determines the crime of theft. If the pocket-book was
afterwards recovered, such recovery does not affect the [accuseds] criminal liability,
which arose from the [accused] having succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases
cited in the latter, in that the fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict
the position of petitioner in this case. Yet to simply affirm without further comment
would be disingenuous, as there is another school of thought on when theft is
consummated, as reflected in the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiaoand 15
years before Flores. The accused therein, a driver employed by the United States
Army, had driven his truck into the port area of the South Harbor, to unload a
truckload of materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped by an M.P. who inspected the
truck and found therein three boxes of army rifles. The accused later contended
that he had been stopped by four men who had loaded the boxes with the
agreement that they were to meet him and retrieve the rifles after he had passed
the checkpoint. The trial court convicted accused of consummated theft, but the
Court of Appeals modified the conviction, holding instead that only frustrated theft
had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused
was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that
as the truck had already unloaded its cargo inside the depot, it would be allowed to
pass through the check point without further investigation or checking. [60] This point
was deemed material and indicative that the theft had not been fully produced, for
the Court of Appeals pronounced that the fact determinative of consummation is
the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary.[61] Support for this proposition was drawn from a decision of the
Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted
as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate
de la consumacion del delito de hurto es preciso que so haga en circunstancias tales
que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no
puede decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.[62]
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty
subject to the control and disposal of the culprits, the articles stolen must first be
passed through the M.P. check point, but since the offense was opportunely
discovered and the articles seized after all the acts of execution had been
performed, but before the loot came under the final control and disposal of the
looters, the offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense committed,
therefore, is that of frustrated theft.[63]
Dio thus laid down the theory that the ability of the actor to freely dispose of the
items stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals
some 15 years later, in Flores, a case which according to the division of the court
that decided it, bore no substantial variance between the circumstances [herein]
and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The accused
therein, a checker employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded the purportedly
empty sea van onto his truck at the terminal of the stevedoring company. The truck
driver proceeded to show the delivery receipt to the guard on duty at the gate of
the terminal. However, the guards insisted on inspecting the van, and discovered
that the empty sea van had actually contained other merchandise as well.[65] The
accused was prosecuted for theft qualified by abuse of confidence, and found
221
himself convicted of the consummated crime. Before the Court of Appeals, accused
argued in the alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that literally frustrated the theft. However,
the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found no substantial variance
between Dio and Flores then before it. The prosecution in Flores had sought to
distinguish that case from Dio, citing a traditional ruling which unfortunately was
not identified in the decision itself. However, the Court of Appeals pointed out that
the said traditional ruling was qualified by the words is placed in a situation where
[the actor] could dispose of its contents at once.[66] Pouncing on this qualification,
the appellate court noted that [o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods at once.
At the same time, the Court of Appeals conceded that [t]his is entirely different
from the case where a much less bulk and more common thing as money was the
object of the crime, where freedom to dispose of or make use of it is palpably less
restricted,[67] though no further qualification was offered what the effect would
have been had that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic
as to whether the crime of theft was produced is the ability of the actor to freely
dispose of the articles stolen, even if it were only momentary. Such conclusion was
drawn from an 1888 decision of the Supreme Court of Spain which had pronounced
that in determining whether theft had been consummated, es preciso que so haga
en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o
menos momentaneamente. The qualifier siquiera sea mas o menos
momentaneamente proves another important consideration, as it implies that if the
actor was in a capacity to freely dispose of the stolen items before apprehension,
then the theft could be deemed consummated. Such circumstance was not present
in either Dio or Flores, as the stolen items in both cases were retrieved from the
actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the
item stolen could lead to a different conclusion as to whether there could have
been free disposition, as in the case where the chattel involved was
of much less bulk and more common x x x, [such] as money x x x.[68]
In his commentaries, Chief Justice Aquino makes the following pointed observation
on the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is
able to freely dispose of the stolen articles even if it were more or less momentary.
Or as stated in another case[[69]], theft is consummated upon the voluntary and
malicious taking of property belonging to another which is realized by the material
occupation of the thing whereby the thief places it under his control and in such a
situation that he could dispose of it at once. This ruling seems to have been based
on Viadas opinion that in order the theft may be consummated, es preciso que se
haga en circumstancias x x x [[70]][71]
In the same commentaries, Chief Justice Aquino, concluding from Adiaoand other
cases, also states that [i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate the same,
although his act of making use of the thing was frustrated.[72]
There are at least two other Court of Appeals rulings that are at seeming variance
with the Dio and Flores rulings. People v. Batoon[73] involved an accused who filled a
container with gasoline from a petrol pump within view of a police detective, who
followed the accused onto a passenger truck where the arrest was made. While the
trial court found the accused guilty of frustrated qualified theft, the Court of
Appeals held that the accused was guilty of consummated qualified theft, finding
that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate
that actual taking with intent to gain is enough to consummate the crime of
theft.[74]
In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from
a supply depot and loaded them onto a truck. However, as the truck passed through
the checkpoint, the stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with those in Dio, the
Court of Appeals held that the accused were guilty of consummated theft, as the
accused were able to take or get hold of the hospital linen and that the only thing
that was frustrated, which does not constitute any element of theft, is the use or
benefit that the thieves expected from the commission of the offense.[76]
In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that
[w]hen the meaning of an element of a felony is controversial, there is bound to
arise different rulings as to the stage of execution of that felony. [77]Indeed, we can
discern from this survey of jurisprudence that the state of the law insofar as
frustrated theft is concerned is muddled. It fact, given the disputed foundational
222
basis of the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated,
and not consummated, theft. As we undertake this inquiry, we have to reckon with
the import of this Courts 1984 decision in Empelis v. IAC.[78]
As narrated in Empelis, the owner of a coconut plantation had espied four (4)
persons in the premises of his plantation, in the act of gathering and tying some
coconuts. The accused were surprised by the owner within the plantation as they
were carrying with them the coconuts they had gathered. The accused fled the
scene, dropping the coconuts they had seized, and were subsequently arrested
after the owner reported the incident to the police. After trial, the accused were
convicted of qualified theft, and the issue they raised on appeal was that they were
guilty only of simple theft. The Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code,[79] but further held that the accused were
guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft
was consummated or frustrated was raised by any of the parties. What does
appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners
were not able to perform all the acts of execution which should have produced the
felony as a consequence. They were not able to carry the coconuts away from the
plantation due to the timely arrival of the owner.[80]
No legal reference or citation was offered for this averment, whether Dio, Flores or
the Spanish authorities who may have bolstered the conclusion. There are indeed
evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors were not able to
perform all the acts of execution which should have produced the felon as a
consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is
frustrated when the offender performs all the acts of execution, though not
producing the felony as a result. If the offender was not able to perform all the acts
of execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than spontaneous
desistance. Empelisconcludes that the crime was
frustrated because not all of the acts of execution were performed due to the
timely arrival of the owner. However, following Article 6 of the Revised Penal Code,
these facts should elicit the conclusion that the crime was only attempted,
especially given that the acts were not performed because of the timely arrival of
the owner, and not because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the
present petition. Even if the two sentences we had cited actually aligned with the
definitions provided in Article 6 of the Revised Penal Code, such passage bears no
reflection that it is the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were sourced from an
indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as
authority on theft. Indeed, we cannot see how Empelis can contribute to our
present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were
considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact
that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated
theft is viable in this jurisdiction. Considering the flawed reasoning behind its
conclusion of frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that convictions for
frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
Espaa was then in place. The definition of the crime of theft, as provided then, read
as follows:
Son reos de hurto:
223
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza
en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la
apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado,
salvo los casos previstos en los artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608,
nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish
Supreme Court decisions were handed down. However, the said code would be
revised again in 1932, and several times thereafter. In fact, under the Codigo Penal
Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de
lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82]
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la
libre disposicion of the property is not an element or a statutory characteristic of
the crime. It does appear that the principle originated and perhaps was fostered in
the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three
questions for the reader whether the crime of frustrated or consummated theft had
occurred. The passage cited in Dio was actually utilized by Viada to answer the
question whether frustrated or consummated theft was committed [e]l que en el
momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al
suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the
1888 decision of the Supreme Court of Spain, that decisions factual predicate
occasioning the statement was apparently very different from Dio, for it appears
that the 1888 decision involved an accused who was surprised by the employees of
a haberdashery as he was abstracting a layer of clothing off a mannequin, and who
then proceeded to throw away the garment as he fled.[84]
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly
recites decisions of the Supreme Court of Spain that have held to that effect. [85] A
few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent
application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban
los sacos de harino del carro que los conducia a otro que tenan preparado, 22
febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia
situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer
de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe
apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay
frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto
seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la
existencia de frustracin cuando, perseguido el culpable o sorprendido en el
momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero
1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes
expuesto, son hurtos consumados.[86]
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually
possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma
cuando la cosa queda de hecho a la disposicin del agente. Con este criterio coincide
la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente
considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta
quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda
aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere
recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto
es necesario para la consumacin del hurto no lo consume efectivamente, los raros
casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son
verdaderos delitos consumados.[87] (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content
with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln
actually set forth his own thought that questioned whether theft could truly be
frustrated, since pues es muy dificil que el que hace cuanto es necesario para la
consumacin del hurto no lo consume efectivamente. Otherwise put, it would be
difficult to foresee how the execution of all the acts necessary for the completion of
the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in
scholarly thought that obliges us to accept frustrated theft, as proposed
in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft
in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly
heretical in light of Cuello Calns position.
224
Accordingly, it would not be intellectually disingenuous for the Court to look at the
question from a fresh perspective, as we are not bound by the opinions of the
respected Spanish commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we ask the question
whether there is a mandate of statute or precedent that must compel us to adopt
the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably higher command, but from the
exercise of the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of theorems
in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the
province of the legislature, through statute, to define what constitutes a particular
crime in this jurisdiction. It is the legislature, as representatives of the sovereign
people, which determines which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned with what was the evident
legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a new element
of a crime which was unintended by the legislature, or redefine a crime in a manner
that does not hew to the statutory language. Due respect for the prerogative of
Congress in defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a narrow interpretation is appropriate. The
Court must take heed of language, legislative history and purpose, in order to
strictly determine the wrath and breath of the conduct the law forbids.[89]
With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability
of the offender to freely dispose of the property stolen is not a constitutive element
of the crime of theft. It finds no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the mens rea or actus reus of the
felony. To restate what this Court has repeatedly held: the elements of the crime of
theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent
of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things. [90]
Such factor runs immaterial to the statutory definition of theft, which is the taking,
with intent to gain, of personal property of another without the latters consent.
While the Dio/Flores dictum is considerate to the mindset of the offender, the
statutory definition of theft considers only the perspective of intent to gain on the
part of the offender, compounded by the deprivation of property on the part of the
victim.
For the purpose of ascertaining whether theft is susceptible of commission in the
frustrated stage, the question is again, when is the crime of theft produced? There
would be all but certain unanimity in the position that theft is produced when there
is deprivation of personal property due to its taking by one with intent to gain.
Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the deprivation from the
owner alone has already ensued from such acts of execution. This conclusion is
reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or
robbery the crime is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making use of the
thing was frustrated.[91]
It might be argued, that the ability of the offender to freely dispose of the property
stolen delves into the concept of taking itself, in that there could be no true taking
until the actor obtains such degree of control over the stolen item. But even if this
were correct, the effect would be to downgrade the crime to its attempted, and not
frustrated stage, for it would mean that not all the acts of execution have not been
completed, the taking not having been accomplished. Perhaps this point could serve
as fertile ground for future discussion, but our concern now is whether there is
indeed a crime of frustrated theft, and such consideration proves ultimately
immaterial to that question. Moreover, such issue will not apply to the facts of this
particular case. We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of time that he
was able to drop these off at a spot in the parking lot, and long enough to load
these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he
has no opportunity to dispose of the same.[92] And long ago, we asserted in People
v. Avila:[93]
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing
to be appropriated into the physical power of the thief, which idea is qualified by
other conditions, such as that the taking must be effected animo lucrandi and
without the consent of the owner; and it will be here noted that the definition does
not require that the taking should be effected against the will of the owner but
merely that it should be without his consent, a distinction of no slight
importance.[94]
225

Insofar as we consider the present question, unlawful taking is most material in this
respect. Unlawful taking, which is the deprivation of ones personal property, is the
element which produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could only be attempted
theft, if at all.
With these considerations, we can only conclude that under Article 308 of the
Revised Penal Code, theft cannot have a frustrated stage. Theft can only be
attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the
offenders therein obtained possession over the stolen items, the effect of the
felony has been produced as there has been deprivation of property. The presumed
inability of the offenders to freely dispose of the stolen property does not negate
the fact that the owners have already been deprived of their right to possession
upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the
offender to freely dispose of the stolen property frustrates the theft would
introduce a convenient defense for the accused which does not reflect any
legislated intent,[95] since the Court would have carved a viable means for offenders
to seek a mitigated penalty under applied circumstances that do not admit of easy
classification. It is difficult to formulate definite standards as to when a stolen item
is susceptible to free disposal by the thief. Would this depend on the psychological
belief of the offender at the time of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as
the size and weight of the property, the location of the property, the number and
identity of people present at the scene of the crime, the number and identity of
people whom the offender is expected to encounter upon fleeing with the stolen
property, the manner in which the stolen item had been housed or stored; and
quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item
would come into account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the
colorful detail, the owner was indeed deprived of property by one who intended to
produce such deprivation for reasons of gain. For such will remain the presumed
fact if frustrated theft were recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts establish the non-completion
of the taking due to these peculiar circumstances, the effect could be to downgrade
the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet
they do not align with the legislated framework of the crime of theft. The Revised
Penal Code provisions on theft have not been designed in such fashion as to
accommodate said rulings. Again, there is no language in Article 308 that expressly
or impliedly allows that the free disposition of the items stolen is in any way
determinative of whether the crime of theft has been produced. Dio itself did not
rely on Philippine laws or jurisprudence to bolster its conclusion, and the
later Flores was ultimately content in relying on Dio alone for legal support. These
cases do not enjoy the weight of stare decisis, and even if they did, their erroneous
appreciation of our law on theft leave them susceptible to reversal. The same holds
true of Empilis, a regrettably stray decision which has not since found favor from
this Court.
We thus conclude that under the Revised Penal Code, there is no crime of
frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Dio and Flores rulings, his petition must be denied, for we decline
to adopt said rulings in our jurisdiction. That it has taken all these years for us to
recognize that there can be no frustrated theft under the Revised Penal Code does
not detract from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft may be
recognized. Our deference to Viada yields to the higher reverence for legislative
intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
226
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 206442 July 1, 2015
JOVITO CANCERAN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the
August 10, 2012 Decision1 and the March 7, 2013 Resolution2 of the Court of
Appeals (CA), in CA-G.R. CR No. 00559, which affirmed and modified the
September 20, 2007 Judgment3 of the Regional Trial Court, Branch 39,
Misamis Oriental, Cagayan de Oro City (RTC), in Criminal Case No. 2003-
141, convicting petitioner Jovito Canceran (Canceran) for consummated
Theft.
The records disclose that Canceran, together with Frederick Vequizo and
Marcial Diaz, Jr., was charged with "Frustrated Theft." The Information reads:
That on or about October 6, 2002, at more or less 12:00 noon, at Ororama
Mega Center Grocery Department, Lapasan, Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, Jovito Canceran, conspiring, confederating together and
mutually helping one another with his co-accused Frederick Vequizo, URC
Merchandiser, and Marcial Diaz, Jr., a Unilever Philippines merchandiser
both of Ororama Mega Center, with intent to gain and without the knowledge
and consent of the owner thereof, did then and there wilfully, unlawfully and
feloniously take, steal and carry away 14 cartons of Ponds White Beauty
Cream valued at ₱28,627,20, belonging to Ororama Mega Center,
represented by William Michael N. Arcenio, thus, performing all the acts of
execution which would produce the crime of theft as a consequence but,
nevertheless, did not produce it by reason of some cause independent of
accused’s will, that is, they were discovered by the employees of Ororama
Mega Center who prevented them from further carrying away said 14 cartons
of Ponds White Beauty Cream, to the damage and prejudice of the Ororama
Mega Center.
Article 308 in relation to Article 309, and 6 of the Revised Penal Code.4
Version of the Prosecution
To prove the guilt of the accused, the prosecution presented Damalito
Ompoc (Ompoc),a security guard; and William Michael N. Arcenio (Arcenio),
the Customer Relation Officer of Ororama Mega Center (Ororama),as its
witnesses. Through their testimonies, the prosecution established that on or
about October 6, 2002, Ompoc saw Canceran approach one of the counters
in Ororama; that Canceran was pushing a cart which contained two boxes of
Magic Flakes for which he paid ₱1,423.00; that Ompoc went to the packer
and asked if the boxes had been checked; that upon inspection by Ompoc
and the packer, they found out that the contents of the two boxes were not
Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream
worth ₱28,627.20; that Canceran hurriedly left and a chase ensued; that
upon reaching the Don Mariano gate, Canceran stumbled as he attempted to
ride a jeepney; that after being questioned, he tried to settle with the guards
and even offered his personal effects to pay for the items he tried to take;
that Arcenio refused to settle; and that his personal belongings were
deposited in the office of Arcenio.5
Version of the Defense
Canceran vehemently denied the charges against him. He claimed that he
was a promo merchandiser of La Tondeña, Inc. and that on October 6, 2002,
he was in Ororama to buy medicinefor his wife. On his way out, after buying
medicine and mineral water, a male person ofaround 20 years of age
requested him to pay for the items in his cart at the cashier; that he did not
know the name of this man who gavehim ₱1,440.00 for payment of two
boxes labelled Magic Flakes; that he obliged with the request of the
unnamed person because he was struck by his conscience; that he denied
knowing the contents of the said two boxes; that after paying at the cashier,
he went out of Ororama towards Limketkai to take a jeepney; that three
persons ran after him, and he was caught; that he was brought to the 4th
floor of Ororama, where he was mauled and kicked by one of those who
chased him; that they took his Nokia 5110 cellular phone and cash
amounting to ₱2,500.00; and that Ompoc took his Seiko watch and ring,
while a certain Amion took his necklace.6
Canceran further claimed that an earlier Information for theft was already
filed on October 9,2002 which was eventually dismissed. In January 2003, a
second Information was filed for the same offense over the same incident
and became the subject of the present case.7
The Ruling of the Regional Trial Court
227
In its Judgment, dated September 20, 2007, the RTC found Canceran guilty
beyond reasonable doubt of consummated Theft in line with the ruling of the
Court in Valenzuela v. People8 that under Article 308 of the Revised Penal
Code (RPC),there is no crime of "Frustrated Theft." Canceran was sentenced
to suffer the indeterminate penalty of imprisonment from ten (10) years and
one (1) day to ten (10) years, eight (8) months of prision mayor, as minimum,
to fourteen (14) years, eight (8) months of reclusion temporal, as maximum.9
The RTC wrote that Canceran’s denial deserved scant consideration
because it was not supported by sufficient and convincing evidence and no
disinterested witness was presented to corroborate his claims. As such, his
denial was considered self-serving and deserved no weight. The trial court
was also of the view that his defense, that the complaint for theft filed against
him before the sala of Judge Maximo Paderanga was already dismissed,
was not persuasive. The dismissal was merely a release order signed by the
Clerk of Court because he had posted bail.10
The Ruling of the Court of Appeals
Aggrieved, Canceran filed an appeal where he raised the issue of double
jeopardy for the first time. The CA held that there could be no double
jeopardy because he never entered a valid plea and so the first jeopardy
never attached.11
The CA also debunked Canceran’s contention that there was no taking
because he merely pushed the cart loaded with goods to the cashier’s booth
for payment and stopped there. The appellate court held that unlawful taking
was deemed complete from the moment the offender gained possession of
the thing, even if he had no opportunity to dispose of the same.12
The CA affirmed with modification the September 20, 2007 judgment of the
RTC, reducing the penalty ranging from two (2) years, four (4) months and
one (1) day of prision correccional, as minimum, to eight (8) years, eight (8)
months and one (1) day of prision mayor, as maximum. Canceran moved for
the reconsideration of the said decision, but his motion was denied by the CA
in its March 7, 2013 resolution.
Hence, this petition.
As can be synthesized from the petition and other pleadings, the following
are the issues: 1] whether Canceran should be acquitted in the crime of theft
as it was not charged in the information; and 2] whether there was double
jeopardy.
Canceran argues that the CA erred in affirming his conviction. He insists that
there was already double jeopardy as the first criminal case for theft was
already dismissed and yet he was convicted in the second case. Canceran
also contends that there was no taking of the Ponds cream considering that
"the information in Criminal Case No. 2003-141 admits the act of the
petitioner did not produce the crime of theft."13 Thus, absent the element of
taking, the felony of theft was never proved.
In its Comment,14 the Office of the Solicitor General (OSG)contended that
there was no double jeopardy as the first jeopardy never attached. The trial
court dismissed the case even before Canceran could enter a plea during the
scheduled arraignment for the first case. Further, the prosecution proved that
all the elements of theft were present in this case.
In his Reply,15 Canceran averred that when the arraignment of the first case
was scheduled, he was already bonded and ready to enter a plea. It was the
RTC who decided that the evidence was insufficient or the evidence lacked
the element to constitute the crime of theft. He also stressed that there was
no unlawful taking as the items were assessed and paid for.
The Court's Ruling
The Court finds the petition partially meritorious.
Constitutional Right of the
Accused to be Informed of
the Nature and Cause of
Accusation against Him.
No less than the Constitution guarantees the right of every person accused in
a criminal prosecution to be informed of the nature and cause of accusation
against him.16 It is fundamental that every element of which the offense is
composed must be alleged in the complaint or information. The main
purpose of requiring the various elements of a crime to be set out in the
information is to enable the accused to suitably prepare his defense. He is
presumed to have no independent knowledge of the facts that constitute the
offense.17
Under Article 308 of the RPC, the essential elements of theft are (1) the
taking of personal property; (2) the property belongs to another; (3) the taking
away was done with intent of gain; (4) the taking away was done without the
consent of the owner; and (5) the taking away is accomplished without
violence or intimidation against person or force upon things. "Unlawful taking,
which is the deprivation of one’s personal property, is the element which
produces the felony in its consummated stage. At the same time, without
228
unlawful taking as an act of execution, the offense could only be attempted
theft, if at all."18
"It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of ‘taking’ itself, in that there could be
no true taking until the actor obtains such degree of control over the stolen
item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all
the acts of execution have not been completed, the "taking not having been
accomplished."19
A careful reading of the allegations in the Information would show that
Canceran was charged with "Frustrated Theft" only. Pertinent parts of the
Information read:
x x x did then and there wilfully, unlawfully and feloniously take, steal and
carry away 14 cartons of Ponds White Beauty Cream valued at ₱28,627,20,
belonging to Ororama Mega Center, represented by William Michael N.
Arcenio, thus performing all the acts of execution which would produce the
crime of theft as a consequence, but nevertheless, did not produce it by
reason of some cause independent of accused’s will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated Theft. The Information can
never be read to charge Canceran of consummated Theft because the
indictment itself stated that the crime was never produced. Instead, the
Information should be construed to mean that Canceran was being charged
with theft in its attempted stage only. Necessarily, Canceran may only be
convicted of the lesser crime of Attempted Theft.
"[A]n accused cannot be convicted of a higher offense than that with which
he was charged in the complaint or information and on which he was tried. It
matters not how conclusive and convincing the evidence of guilt may be, an
accused cannot be convicted in the courts of any offense, unless it is
charged in the complaint or information on which he is tried, or necessarily
included therein. He has a right to be informed as to the nature of the offense
with which he is charged before he is put on trial, and to convict him of an
offense higher than that charged in the complaint or information on which he
is tried would be an unauthorized denial of that right."20 Indeed, an accused
cannot be convicted of a crime, even if duly proven, unless it is alleged or
necessarily included in the information filed against him.21 An offense
charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter.22
The crime of theft in its consummated stage undoubtedly includes the crime
in its attempted stage. In this case, although the evidence presented during
the trial prove the crime of consummated Theft, he could be convicted of
Attempted Theft only. Regardless of the overwhelming evidence to convict
him for consummated Theft, because the Information did not charge him with
consummated Theft, the Court cannot do so as the same would violate his
right to be informed of the nature and cause of the allegations against him,
as he so protests.
The Court is not unmindful of the rule that "the real nature of the criminal
charge is determined, not from the caption or preamble of the information nor
from the specification of the law alleged to have been violated – these being
conclusions of law – but by the actual recital of facts in the complaint or
information."23 In the case of Domingo v. Rayala,24 it was written:
What is controlling is not the title of the complaint, nor the designation of the
offense charged or the particular law or part thereof allegedly violated, these
being mere conclusions of law made by the prosecutor, but the description of
the crime charged and the particular facts therein recited. The acts or
omissions complained of must be alleged in such form as is sufficient to
enable a person of common understanding to know what offense is intended
to be charged, and enable the court to pronounce proper judgment. No
information for a crime will be sufficient if it does not accurately and clearly
allege the elements of the crime charged. Every element of the offense must
be stated in the information. What facts and circumstances are necessary to
be included therein must be determined by reference to the definitions and
essentials of the specified crimes. The requirement of alleging the elements
of a crime in the information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his defense.25
In the subject information, the designation of the prosecutor of the offense,
which was "Frustrated Theft," may be just his conclusion. Nevertheless, the
fact remains that the charge was qualified by the additional allegation, "but,
nevertheless, did not produce it by reason of some cause independent of
accused’s will, that is, they were discovered by the employees of Ororama
Mega Center who prevented them from further carrying away said 14 cartons
of Ponds White Beauty Cream, x x x.26 This averment, which could also be
deemed by some as a mere conclusion, rendered the charge nebulous.
There being an uncertainty, the Court resolves the doubt in favor of the
accused, Canceran, and holds that he was not properly informed that the
charge against him was consummated theft.
No double jeopardy when
the first jeopardy never
attached
229
Anent the issue of double jeopardy, the Court finds no reason to deviate from
the ruling of the CA.
No person shall be twice put in jeopardy for punishment for the same
offense. The rule of double jeopardy has a settled meaning in this
jurisdiction. It means that when a person is charged with an offense and the
case is terminated either by acquittal or conviction or in any other manner
without the consent of the accused, the latter cannot again be charged with
the same or identical offense. This principle is founded upon the law of
reason, justice and conscience.27
Canceran argues that double jeopardy exists as the first case was scheduled
for arraignment and he, already bonded, was ready to enter a plea. It was the
RTC who decided that there was insufficient evidence to constitute the crime
of theft.
To raise the defense of double jeopardy, three requisites must be present:
(1) a first jeopardy must have attached prior to the second; (2) the first
jeopardy must have been validly terminated; and (3) the second jeopardy
must be for the same offense as that in the first. Legal jeopardy attaches only
(a) upon a valid indictment, (b) before a competent court, (c) after
arraignment, (d) a valid plea having been entered; and (e) the case was
dismissed or otherwise terminated without the express consent of the
accused.28
Here, the products stolen were worth ₱28,627.20. Following Article 309 par.
1 of the RPC, the penalty shall be the maximum period of the penalty
prescribed in. the same paragraph, because the value of the things stolen
exceeded ₱22,000.00. In other words, a special aggravating circumstance
shall affect the imposable penalty.
Applying the Indeterminate Sentence Law, the minimum penalty should be
within the range of Arresto Mayor Minimum to Arresto Mayor Medium. In
view of the special aggravating circumstance under Article 309 (1), the
maximum penalty should be Arresto Mayor Maximum to Prision Correccional
Minimum in its maximum period.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012
Decision and the March 7, 2013 Resolution of the Court of Appeals in CA-
G.R. CR No. 00559 are hereby MODIFIED, in that, the Court finds accused
Jovito Canceran guilty beyond reasonable doubt of the crime of Attempted
Theft.
Accordingly, the Court sentences the accused to suffer the indeterminate
prison term ranging from Four (4) Months of Arresto Mayor, as minimum, to
Two (2) Years, Four (4) Months of Prision Correccional, as maximum.
SO ORDERED.

Here, the CA correctly observed that Canceran never raised the issue of
double jeopardy before the RTC.1âwphi1 Even assuming that he was able to
raise the issue of double jeopardy earlier, the same must still fail because
legal jeopardy did not attach. First, he never entered a valid plea. He himself
admitted that he was just about to enter a plea, but the first case was
dismissed even before he was able to do so. Second, there was no
unconditional dismissal of the complaint. The case was not terminated by
reason of acquittal nor conviction but simply because he posted bail. Absent
these two elements, there can be no double jeopardy.

Penalty of Attempted Theft

The penalty for consummated theft is prision mayor in its minimum and
medium periods.29 The penalty lower by two degrees than that prescribed by
law for the consummated felony shall be imposed upon principals in an
attempt to commit a felony.30 The basis for reduction of penalty by two
degrees is the penalty prescribed by law for the consummated crime. Also,
when the offenses defined in the RPC are punished with a penalty composed
of two periods, like in the crime of theft, the penalty lower by one degree is
formed by two periods to be taken from the same penalty prescribed.31
230
 Republic of the Philippines On 17 August 1978, during the pendency of her petition, Magdalena
SUPREME COURT executed a Conditional Deed of Sale of Lot 209-A in favor of respondent
Manila spouses Rufino and Conrada Suplemento "subject to the lien subsisting and
annotated on the face of the Certificate of Title." 3 Magdalena agreed to bear
FIRST DIVISION the cost of the cancellation of the lien and respondents to be bound thereby
as long as it subsisted, with the understanding that in the event the lien was
not cancelled, the amount already paid would be refunded. It was further
stipulated that "out of the Nineteen Thousand (P19,000.00) consideration . . .
only Three Thousand (P3,000.00) pesos . . . shall be paid pro rata monthly
G.R. No. 101262 September 14, 1994 for ten (10) years and to convene (commence?) one (1) year from the date of
this Deed." 4
SPOUSES ALBERTO GARRIDO AND COLOMA DAGURO, petitioners,
vs. On 24 January 1979 the petition for cancellation of encumbrance was denied
THE COURT OF APPEALS, SPOUSES RUFINO AND CONRADA for the reason that the ground cited for the cancellation was not one of those
SUPLEMENTO, respondents. allowed by Sec. 112 of Act 496 and that Magdalena failed to produce the
deed of donation which contained the alleged restriction. Nonetheless, on 19
Ramon A. Gonzales for petitioners. July 1979 Magdalena executed with the conformity of her husband a Deed of
Absolute Sale covering Lot 209-A in favor of respondents, spouses Rufino
Franklin J. Andrada for private respondents. and Conrada Suplemento. 5 The deed was notarized on the same date. On
13 April 1982, Magdalena died. On 2 December 1982 TCT No. T-108689
was issued in the name of the Suplementos. 6

BELLOSILLO, J.: Magdalena had two (2) daughters but only one is still living, Coloma Daguro,
married to Alberto Garrido, the spouses being the petitioners herein. They
were based in Davao City and would visit Magdalena only on occasions. In
Tomas Hingco, a widower, originally owned Lot 209 of the Dingle Cadastre,
February 1984, Alberto Garrido visited the Suplementos in the house where
Iloilo. He married Consolacion Rondael, a widow, who had a daughter
Magdalena used to live. 7 He wanted to find out if the taxes on the house
Magdalena Rondael. In 1947 he donated one half (1/2) of Lot 209 to his
were being paid. In reply, respondents showed him the Deed of Absolute
stepdaughter Magdalena subject to the condition that she could not sell,
Sale signed by his parents-in-law and it was only then that he came to know
transfer or cede the same. When he died, Consolacion inherited the
that Lot 209-A no longer belonged to his in-laws.
remaining half of Lot 209 which, in turn, was inherited by Magdalena upon
the death of Consolacion. Consequently, the entire Lot 209 was registered in
the name of Magdalena Rondael, married to Lorenzo Daguro, under Transfer On 28 October 1985 petitioners Coloma Daguro and Alberto Garrido filed a
Certificate of Title No. complaint before the Regional Trial Court of Iloilo City for annulment of the
T-13089. Deed of Absolute Sale of Lot 209-A, reconveyance and damages claiming
that the deed was fictitious since Magdalena's signature thereon "appears to
have been traced" and Lorenzo Daguro's signature was likewise a forgery
In 1973 Magdalena sold a portion of Lot 209 (Lot 209-B) to Mariano Platinos
since he died prior to the execution thereof, or on 9 October 1976. 8
and Florida Macahilo. The remaining portion (Lot 209-A) with an area of 343
square meters is the subject of this litigation.
The trial court, relying on the deposition of Magdalena on 24 January 1979,
found that she wanted to sell and did in fact sell Lot 209-A to the
In 1976 Lorenzo Daguro died. Magdalena then filed before the Court of First
Suplementos. In addition, the court found that the genuineness of Lorenzo
Instance of Iloilo a petition to cancel the lien prohibiting her from disposing of
Daguro's signature was not germane to the validity of the Deed of Absolute
Lot 209-A because she needed money for her subsistence and medical
Sale as said signature was not necessary to convey title to the paraphernal
expenses as she was then in her 80's. Besides, she was sickly. 1 He
property of Magdalena. To petitioners' credit, it held that no evidence was
deposition on oral examination in connection with her petition was taken on
adduced by respondents to show payment of any installment of the balance
24 January 1979. 2
231
of the purchase price to Magdalena before her death or to her heir, Coloma.
Thus, judgment was rendered on 19 October 1988 declaring the sale of 19
July 1979 valid but ordering the Suplementos to pay petitioners P16,000.00
with legal rate of interest until fully paid. 9
On appeal, respondent Court of Appeals affirmed the ruling of the Iloilo trial
court in its decision of 27 February 1991 10 and denied reconsideration on 29
July 1991. 11
Petitioners contend that the appellate court erred in holding that they have no
personality to assail the Absolute Deed of Sale and the genuineness of the
signature of Magdalena Rondael.
Petitioners assert that the issue raised in the trial court was whether
Magdalena Rondael could sell the property despite the prohibition in the
deed of donation. In ruling that they were incapacitated to question the non-
observance of the condition, respondent court went beyond the issue, hence,
exceeded its jurisdiction.
We find for respondents. Petitioners have no personality to question the
violation of the restriction because they are not heirs of the donor. When the
donee fails to comply with any of the conditions imposed by the donor, it is
the donor who has the right to impugn the validity of the transaction affecting
the donated property, conformably with Art. 764 of the Civil Code, which
provides that the right to revoke may be transmitted to the heirs of the donor
and may be exercised against the heirs of the donee, and the action
prescribes four years after the violation of the condition.
Petitioners' lack of capacity to question the non-compliance with the condition
is intimately connected with the issue regarding the validity of the sale on
account of the prohibition in the deed of donation. Thus, we have established
the rule that an unassigned error closely related to an error properly
assigned, or upon which the determination of the question properly assigned
is dependent, may be considered by the appellate court. 12
Petitioners also submit that the finding of the appellate court that the
signature of Magdalena Rondael in the Deed of Absolute Sale is genuine has
been overtaken by events. In a letter dated 1 August 1991, the Regional
Director of the NBI, Iloilo City, furnished the Iloilo City Prosecutor with a copy
of NBI Questioned Document Report No. 413-791 dated 23 July 1991,
purporting to show that the questioned signature as well as the
standard/sample signatures of the deceased Magdalena Rondael were not
written by one and the same person, 13 hence, a forgery.
Admittedly, the NBI report was never adduced before the lower courts; in
fact, it is presented for the first time and only before this Court. Obviously,
this is not a newly discovered evidence within the purview of Sec. 1, par. (b),
Rule 37, of the Rules of Court. Petitioners should have thought of having the
signature of Magdalena Rondael on the deed of sale examined when the
case was still with the trial court. Nothing would have stopped them from
doing so. Hence, it is now late, too late in fact, to present it before this Court.
Petitioners' reliance on the NBI report as basis for new trial on the ground of
"newly discovered evidence" is a mistake. In the first place, the rule is explicit
that a motion for new trial should be filed before the trial court and within the
period for appeal. In the second place, in order that a particular piece of
evidence may be properly regarded as "newly discovered" for the purpose of
granting new trial, the following requisites must concur: (a) the evidence had
been discovered after trial; (b) the evidence could not have been discovered
and produced during trial even with the exercise of reasonable diligence;
and, (c) the evidence is material and not merely corroborative, cumulative or
impeaching and is of such weight that if admitted would probably alter the
result. 14 At the pitch of these requirements is that what is essential is not so
much the time when the evidence offered first sprang into existence nor the
time when it first came to the knowledge of the party now submitting it;
rather, that the offering party had exercised reasonable diligence in
producing or locating such evidence before or during trial but had
nonetheless failed to secure it. The NBI report does not qualify as newly
discovered evidence because the second requirement was not complied
with. Petitioners did not exercise reasonable diligence in procuring such
evidence before or during trial. By their own admission, the Fiscal sought NBI
assistance only after the trial of the case. They could have done so
themselves when their case was tried. Besides, when the City Prosecutor
requested the NBI for a handwriting examination in connection with
petitioners' criminal complaint for falsification against respondents, the initial
response of the NBI was: "no definite opinion can be rendered on the matter
due to lack of sufficient basis necessary for a scientific comparative
examination." 15 From there it can be deduced that petitioners did not submit
adequate documents before the NBI at the first instance, thus showing their
want of reasonable diligence in procuring the evidence they needed for a
new trial.
We accord finality to the finding of respondent court, supported as it is by
substantial evidence, that the alleged discrepancy between the signature of
Magdalena Rondael appearing on the Deed of Absolute Sale and her
signatures on the Conditional Deed of Sale, petition to cancel the annotation
prohibiting the sale of the donated property, petitioners' reply to
opposition, 16 transcript of her deposition dated 24 January 1979, and the
deed of sale of Lot 209-B, does not exist. Having alleged forgery, petitioners
had the burden of proof. Here, they utterly failed. They even attached to their
232
complaint five receipts purportedly signed by Magdalena but, except for one
which was signed "Magdalena Rondael," said receipts were signed
"Magdalena Daguro." 17 Besides, there is not showing that the signatures
presented as bases for comparison are themselves genuine. On the other
hand, the Deed of Absolute Sale is a notarized document which carries the
evidentiary weight conferred upon such public document with respect to its
due execution.
WHEREFORE, the petition is DENIED. The decision of the Court of Appeals
of 27 February 1991 as well as its resolution denying reconsideration thereof
is AFFIRMED.
SO ORDERED.
EN BANC
[G.R. Nos. 146693-94. July 31, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. ROLANDO MENDOZA, JR. y DELA
CRUZ, appellant.
DECISION
CARPIO-MORALES, J.:
For automatic review is the joint decision rendered by Branch 45 of the Regional
Trial Court (RTC) of Bais City finding appellant Rolando Mendoza, Jr. guilty of
incestuous rape on two counts and sentencing him in each to suffer the penalty of
death and to pay his daughter-victim, Monaliza Mendoza,[1] P50,000.00 as moral
damages and an unspecified amount as exemplary damages.
The complaints dated August 9, 1996 against appellant, which were treated as two
separate informations after the conduct of preliminary investigation, read as
follows:
Criminal Case No. 96-074-B:
COMPLAINT[2]
The undersigned private complainant, MONALIZA MENDOZA,
Filipino, thirteen (13) years old, single and a resident of Barangay Olympia, Bais
City, Philippines, hereby accuses ROLANDO MENDOZA Y DELA CRUZ of the crime of
rape, committed as follows:
That on or about April 2, 1996 at Bais City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, who is the father of the
undersigned, by means of force or intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of the undersigned complainant
against her will.
x x x (Emphasis supplied)
Criminal Case No. 96-075-B:
COMPLAINT[3]
The undersigned private complainant, MONALIZA MENDOZA,
Filipino, thirteen (13) years old, single and a resident of Barangay Olympia, Bais
City, Philippines, hereby accuses ROLANDO MENDOZA Y DELA CRUZ of the crime of
rape, committed as follows:
That on or about May 16, 1996 at Bais City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, who is the father of the
undersigned, by means of force or intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of the undersigned complainant
against her will.
x x x (Emphasis supplied)
Arraigned on December 11, 1996, appellant pleaded not guilty to both
charges[4] trial for which was joint.
Before the start of the pre-trial, the prosecution amended the informations by
adding the word Jr. after appellants surname Mendoza.[5]
At the pre-trial, appellant admitted that he is the father of Monaliza. [6]
Established from the evidence of the prosecution are the following:
At around noon of April 2, 1996, Monaliza, the youngest of three daughters of
appellant and his wife Elpedia, was left alone with appellant at their house at
Olympia, Bais City, Monalizas elder sister Marigilda having earlier gone out to fetch
water from a faucet about 1 kilometers away from their house, while her mother
was in Manila where she was working, as was her sister Brenda, and her brother
Reynaldo was in Iloilo. Appellant held Monaliza by the waist and sucked her
nipples. While she struggled to extricate herself, she failed. He then inserted his
forefinger into her vagina which caused her pain. When she inquired why appellant
did that to her, he replied that he was just caressing.
At about midnight also of April 2, 1996, while Monaliza lay asleep on the floor of
their house between her elder sister Marigilda who was 3 meters away from her
and appellant who was a meter away from her, she woke up and found appellant
on top of her and kissing her face. She struggled hard to free herself, but appellant
held her tightly and inserted his sex organ into her vagina and made a push and pull
movement. On account of appellants acts, she was in pain. He warned her,
however, not to tell anyone about the incident, otherwise, he would kill them. Out
of fear, she did not tell Marigilda about the incident.
A month and a half after the April 2, 1996 incident or on May 16, 1996, at
noontime, appellant instructed Marigilda to, and the latter did, gather some
firewood, leaving him and just Monaliza inside their house. Appellant soon
approached Monaliza, opened her dress, sucked her nipples, and inserted his penis
into her vagina and made a push and pull movement. As in the previous incident,
she struggled to free herself but failed as he held her tightly. She was likewise in
pain and was once again warned not to reveal the incident to anyone on pain of
death.
Appellants threats having overpowered her, Monaliza did not inform her mother
about the incidents even after the latter came home from Manila on June 25, 1996
to attend the annual barangay fiesta.
233
As Monaliza later was observed to be always drowsy and weak, and her hips were
expanding while her breasts became pronounced, she was prevailed upon by her
mother and her aunt Jane Ya Gen Patio to submit to a medical examination by Dr.
Beverly R. Renacia, Medical Officer V of the Bais City Health Office. Monaliza
ultimately revealed to Dr. Renacia, her mother and aunt Ya Gen that she had been
raped by appellant.
The result of the external examination conducted on Monaliza on July 23, 1996 is
reflected on the medical certificate issued by Dr. Renacia[7] who likewise issued
another medical certificate reflecting the following results of
the internal examination conducted on July 25, 1996.[8]
I.E. Findings:
- Scarce pubic hair noted on the upper half of the genitalia
- Hymen with healed laceration at 12:00 o clock and 9 oclock positions
- Vagina admits 2 fingers
- Cervix soft, admits 1 finger
- No discharges noted
Pregnancy test done July 29, 1996 yielded a positive result.
Addendum: No physical injuries like bruises or hematoma were noted. (Emphasis
supplied)
After the filing of the complaints-informations on August 9, 1996 or on October 29,
1996, Monaliza gave birth to a baby girl.[9]
Denying the accusations, appellant, a carpenter and a fisherman, claimed as
follows:
Sometime on February or March 1996, he noticed a contusion on the left arm of
Monaliza, drawing him to inquire from her what happened, to which she replied
that her brother Reynaldo hit her. Thus informed, appellant got mad at her for not
priorly revealing the incident.
A few days later, thinking that Monaliza had influenza, he brought her to the
hospital where she was examined and was given prescription for medicine.
After the lapse of two months or on May 1996, appellant observed that Monaliza
was pale and vomiting. Suspecting that she was pregnant, he inquired if she was,
but she did not answer. He then threatened her that if she was, he would kill her as
her pregnancy would bring shame to the family. He did not, however, write his wife
about his suspicions regarding Monalizas condition as he knew that she would be
coming home for the annual barangay fiesta of Olympia.
While his wife went home for the barangay fiesta, he failed to inform her of his
suspicions about Monalizas pregnancy as he was occupied with the fiesta. It was his
wife, however, who broached to him her own suspicion that Monaliza was
pregnant. And his wife brought Monaliza to a hilot who opined that she was
probably pregnant, hence, the latter was brought to the hospital for medical
examination.
On top of appellants denial, he advanced that he could not have raped Monaliza on
April 2, 1996 and May 16, 1996 as he was, on the first date with his brother-in-law,
one Danny, constructing a house,[10] while he was working with a certain Kalaw,
Danny, and one Ete on the latter date.[11]
Finding for the prosecution, the trial court convicted appellant of two counts of
qualified rape and sentenced him to death in both cases in its November 17, 2000
Joint Decision, the dispositive portion of which reads, quoted verbatim:[12]
WHEREFORE, premises considered, this Court finds accused, ROLANDO MENDOZA
(sic) Y DE LA CRUZ guilty for the qualified crime of rape in two (2) counts under
Article 335 of the Revised Penal Code as amended by Sec. 11 of Republic Act No.
7659, and thereby sentences him to two (2) extreme and supreme penalties of
DEATH, and to pay moral damages of P50,000.00 and exemplary damages to the
victim, Mona Liza Mendoza, and to pay costs. (Emphasis in the original)
Appellant thus assigns as errors of the trial court the following:[13]
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANT FOR THE CRIMES CHARGED HAS BEEN PROVEN BEYOND REASONABLE
DOUBT.
THE COURT A QUO GRAVELY ERRED IN IMPOSING UPON THE ACCUSED-APPELLANT
THE SUPREME PENALTY OF DEATH DESPITE THE FAILURE OF THE PROSECUTION TO
ALLEGE THE MINORITY OF THE PRIVATE COMPLAINANT IN THE ACCUSATORY
PORTION OF THE COMPLAINT.
Maintaining his innocence, appellant attributes ill-motive to Monalizas
grandmother[14] who, by his claim, sometimes got angry at him for going home late,
she telling him that there are some young men or boys who frequented our
place.[15]
Appellant attributes ill-motive too to Monaliza arising from his threats to kill her if it
turned out that she was indeed pregnant.[16]
The defense counsel, during the cross examination of Monaliza, attempted to
establish that no rape on April 2, 1996 could have possibly taken place because of
Marigildas presence.[17]
Parental punishment, however, does not suffice to prod a daughter, who is of
tender age, to falsely accuse her father of rape. [18] It takes depravity for a young girl
to concoct a story of defloration against her putative father, unless she had really
been aggrieved.[19]
And it is hard to believe that a grandmother would expose her granddaughter, a
young and innocent girl, to the humiliation and stigma of a rape trial simply to get
back at the accused unless the rape charges were true.[20]
As for the presence of Marigilda during the April 2, 1996 incident, it is not
impossible, nor incredible, for her to have been in deep slumber while the sexual
assault on Monaliza was taking place.[21] Lust, after all, does not respect either time
or place,[22] nor the presence of people nearby.[23]
As for the defense counsels attempt to establish during the cross-examination of Dr.
Renacia that appellant could not have raped Monaliza on April 2, 1996 and May 16,
1996, given Monalizas giving birth to a baby girl on October 29, 1996, [24] after the
lapse of less than seven (7) months from the first rape incident, [25] the same fails.
234
The record does not disclose any claim by Monaliza that it was on account of the
rape subject of the first information that she became pregnant. As Dr. Renacia
recalled on direct examination, Monaliza had revealed to her that she had been
sexually abused by her father several times.
Q Now, when she consulted you on July 23, 1996, will you kindly inform the
Honorable Court what was her principal complaint?
A The patient Monaliza Mendoza came with the chest complaint and abdominal
distinction and amenorrhea or absence of menstruation.
Q So, since this was her principal complaint, will you kindly inform the Honorable
Court what you did to her?
A The most important part of examination of the patient is history. First of all, I
asked for the history as to what happened and the patient revealed to me that she
has been sexually abuses (sic) by his (sic) own father and I noticed that during [t]his
history taking she had difficulty in recalling days, and so it took me more than an
hour to interview the patient just to get the dates which is important in my
examination and estimating the age of the pregnancy.
Q Now, because her principal complaint was she was no longer menstruating, why
did you ask questions on the patient? Did you have any conclusion on the matter
because of this complaint?
A What we usually have in mind on the patient to come in with the complaint of
amenorrhea specially in the reproduction age group, the first consideration is
pregnancy; thats why I have to ask the patient matters or incidents which are
related to pregnancy.
Q Because from the appearance of the patient you observed that she could be
pregnant?
A Yes.
Q And after she told you that she was sexually abused by her father several times,
did you bother to ask the dates when she was abused?
A Yes, I did. However, she gave me several dates and I intentionally did not include
it in my medical certificate because I notice that as I said earlier, she has difficulty
in recalling dates and besides, for my medical certificate what is important I
believe, as a physician, is only the date of the last menstrual period which is very
necessary.[26]
And on cross-examination, the doctor maintained that Monaliza had revealed to her
that she was abused by her father several times, the dates of which she (the doctor)
could not exactly remember but as far as [she] could recall [Monaliza] gave May
16[,] sometime in April, then during the KB election.[27]
At all events, that Monaliza may have already been pregnant at the time of the
rapes subject of the informations does not exculpate appellant from the charges
therefor, the impregnation of a woman not being an element of rape.
In People v. Adora, this Court held:[28]
[A]uthorities in forensic medicine agree that the determination of the exact date of
fertilization is problematic. The exact date thereof is unknown; thus, the difficulty in
determining the actual normal duration of pregnancy. A Filipino authority writes:
The average duration of pregnancy is 270 to 280 days from the onset of the last
menstruation. There is however no means of determining it with
certainty. Evidence derived from pregnancy following a single coitus is trustworthy,
but inasmuch as some authorities consider more than two weeks as the life span of
the spermatozoa in the vagina canal, it is hard to ascertain the exact date of
fertilization. There is no synchrony between coitus and fertilization.
Computation of the whole period of gestation, thus, becomes a purely academic
endeavor. In this light, while most authorities would agree on an average
duration, there are still cases of long and short gestations.
Thus, the stage of development of the fetus cannot be determined with any
exactitude, and an error of at least two weeks, if not more, should be allowed
for. This, together with the recognized variation in the duration of normal
pregnancies, makes it very unsafe to dogmatize in a medico-legal case xxx.
More importantly, it should be pointed out that these consolidated cases are
criminal cases for rape, not civil actions for paternity or filiation. The identity of the
father of the victims child is a non-issue.Even her pregnancy is beside the
point. What matters is the occurrence of the sexual assault committed by
appellant on the person of the victim on four separate occasions . . . (Citations
omitted;emphasis and underscoring supplied)
This ruling on the computation of the whole period of gestation was reiterated
in People v. Bation.[29]
As for the failure of Monaliza to immediately report the incidents, this does not
dent her credibility nor undermine the charges. It bears noting that appellant
threatened to kill all of them if Monaliza reported what had transpired. [30] As is a
common occurrence, a young and immature girl usually conceals for a time the rape
committed on her because of the rapists threats on her life, more so when the
offender is living with her. [31]
The gravamen of the offense of rape as defined under Article 335 of the Revised
Penal Code, as amended by Republic Act No. 7659,[32] is sexual intercourse with a
woman against her will or without her consent.[33] Thus, the prosecution must prove
that (1) the offender had carnal knowledge of a woman; and (2) such act was
accomplished through the use of force or intimidation; or when the victim is
deprived of reason or otherwise unconscious; or when the victim is twelve (12)
years of age, or is demented.[34]
By the very nature of the crime of rape, conviction or acquittal depends almost
entirely on the credibility of the complainants testimony, given the fact that usually
only the participants can testify as to its occurrence.[35]
The following extract from Monalizas testimony[36] indubitably establishes the
presence of the elements of rape with respect to the April 2, 1996 incident:
Q: About midnight of that same day, April 2, 1996, can you recall where were you?
235
A: Yes. A: My father told me that if I will tell anyone about it he will kill us. (Emphasis
Q: Where were you? supplied)
A: I was in our house. And Monalizas following testimony on cross-examination amplified her claim that
Q: Who were your companions that evening? she was raped by appellant on April 2, 1996:[37]
A: My elder sister and my father. Q: And it was at 12:00 o clock in the evening of that day, April 2, 1996 when you
Q: What were you doing at that time? were awakened and that was the time you saw your father lying on top of you,
A: I was sleeping in the middle. right?
Q: In the middle of whom? A: Yes.
A: I was sleeping in the middle of my father and my sister. Q: And he started to carress you, right?
Q: You were sleeping in between your elder sister Marigilda and your father, A: Yes.
accused Rolando Mendoza, Jr.? Q: Your father did not cover your mouth, right?
A: Yes. A: He covered my mouth.
Q: So, you (sic) father was beside you? Q: But you did no struggle?
A: Yes. A: I struggled.
Q: Do you recall any unusual incident that happened on such date and time? Q: You struggled very hard?
A: Yes. A: Yes.
Q: What was that incident? Q: And inspite of what you did, your sister was not awakened?
A: I woke up because I feel (sic) my father was kissing my face, and when I opened A: She was able to move but she was not able to wake up.
my eyes, he was on top of me. Q: You did not shout?
Q: What did you do when you woke up and your father [was] kissing you and on A: I was not able to shout because he covered my mouth.
top of you? xxx
A: I tried to free myself from his hold but I was not able to do so because he was Q: What did you do when you said you struggled hard?
holding me tightly. A: I struggled but he hugged me tightly.
Q: After that, what did he do to you if he did anything? Q: Can you please state how far was your sister when you said you struggled hard?
A: He inserted his penis inside my vagina. A: My sister was lying about that distance (witness pointing to a place inside the
Q: Were you wearing panty at that time? courtroom which is estimated to be about three meters) and my father was beside
A: Yes. me about a meter away.
Q: Before he inserted his sexual organ into your vagina, did he pull out your panty? Q: And this was the bed you said you were sleeping together with your father and
A: Yes. sister, right?
Q: Did his sex organ enter your sex organ? Court: Let us clarify this. This bed where you are sleeping, is it a floor or an elevated
A: Yes. place?
Q: What did you feel when the sex organ of your very own father enter your sex A: We were sleeping on the floor.
organ? Q: And it was then that your father successfully performed the act of sexual
A: I felt pain. intercourse with you that night?
Q: When the sex organ of your father was inside your vagina, did he make a push A: Yes. (Emphasis and underscoring supplied)
and pull movement? As for the May 16, 1996 incident, Monalizas following account on direct
A: Yes. examination[38] establishes too the presence of the elements of rape:
Q: After that, what did he do? xxx
A: Nothing. Q: With that statement, are you telling the court now that you were only raped by
Q: Did he tell you something? your father once?
A: Yes. A: I was raped twice.
Q: What did your father tell you? Q: When you said you were raped on April 2, 1996, when was the second rape that
was committed by your father?

236
A: I was raped on May 16, 1996.
Q: How did your father raped (sic) you on May 16, 1996?
A: He opened my breast (sic) and he sucked my nipples, and he inserted his penis
inside my vagina.
Q: Before he inserted his penis into your vagina, did you struggle hard to free
yourself?
A: Yes.
Q: Were you able to free yourself because you struggled hard?
A: No, I was not able to free myself.
Q: Why?
A: Because he hugged me very tightly.
Q: And you said that on May 16, 1996, your father inserted his sexual organ into
yours. Did his sex organ omdeed (sic) entered into your vagina?
A: Yes, he was able to penetrate me (sic).
Q: Did he make a push and ull (sic) movement?
A: Yes.
Q. After that, what did your father do?
A: He said that do not tell anyone about it because he will kill all of us. (Emphasis
supplied)
That force attended the coitus during the first incident is gathered from appellants
covering of Monalizas mouth, thus effectively silencing her as she struggled to free
herself from him.As in the first incident, appellant during the second incident held
Monaliza tightly to prevent her from setting herself free as she tried to resist
appellants acts. And in both incidents, he repeatedly warned her against confiding
to anyone what had transpired.
That Monaliza could not offer a more tenacious resistance could be explained by
the fact that appellant was simply too strong for her. Her resistance, however,
clearly negates consent.
Monalizas pointing to appellant as the one who raped her twice undermines his
denial. Denial being intrinsically weak as a defense, it must be supported by strong
evidence of non-culpability to merit credence.[39] This appellant failed to do.
As between the positive and categorical testimony then of Monaliza that she was
raped by appellant and the latters bare denial, the former prevails. [40]
As for appellants alibi, it is weak as it can easily be fabricated.[41] And that explains
why, for it to prosper, two (2) elements must concur: (a) his presence at another
place at the time of the perpetration of the offense must be proven; and (b) the
physical impossibility for him to be at the scene of the crime.[42] Proof of these
appellant failed to discharge.
If any nagging doubts about appellants culpability still linger, his leaving for Iloilo,
upon learning of the filing of the present charges in court and the issuance of
warrants for his arrest, thereby frustrating the service thereof and calling for the
issuance of alias warrants,[43] should dissipate them. Appellants explanation that he
went to Iloilo to look for his son Reynaldo[44]leaves this Court unbelieving. For a
truly innocent person would normally seize the first available opportunity to defend
himself and assert his innocence.[45] His flight certainly strongly indicates his guilt.[46]
Appellant argues, at all events, that assuming arguendo that he is guilty, the trial
court erred in imposing death on him since the prosecution failed to allege the
minority of Monaliza in the accusatory portion of each of the complaints. Appellants
position in this regard is well-taken.
Monalizas age at the time of the filing of the complaints appears in the caption or
preamble thereof as a description of her as the private complainant.[47] Her age at
the time the incidents occurred was, however, not specified in the accusatory
portion of each of the complaints. Such omission is prejudicial to the right of
appellant to be informed of the nature of the accusations against him.[48] Thus, in
several cases, this Court held that it is not sufficient to simply allege the qualifying
circumstances in the caption or the preamble but, more importantly, these must be
alleged in the body or the accusatory portion of the information. [49]
It has been held that the real nature of the criminal charge is determined not from
the caption or the preamble of the information nor from the specification of the
provision of law alleged to have been violated . . . but from the actual recital of
the facts as alleged in the body of the information. In this case the information
upon which the appellant was arraigned does not state in the specification of the
acts constitutive of the offense that he is charged as the live-in partner of the
mother of the alleged victim. This insufficiency prevents a judgment of conviction
for qualifiedrape and thus, the death penalty cannot be imposed. (People v. Bali-
balita; citation omitted; emphasis and underscoring supplied)[50]
As for the special qualifying circumstance of Monalizas relationship with appellant,
the prosecution failed to prove it beyond reasonable doubt. The complaint alleged
that he is the father of Monaliza. Monaliza testified that appellant is her
father.[51] And appellant admitted during the pre-trial[52] and the trial[53] that he is
Monalizas father. The bare testimony of the complainant and the admission of the
accused as to their relationship do not suffice, however, [54] for an accused cannot
be condemned to suffer the supreme penalty of death on the basis of stipulations
or his own admissions.[55] This strict rule is warranted by the seriousness of the
penalty of death. The fact that appellant is the father of Monaliza must be
sufficiently established by competent and independent evidence. [56] This the
prosecution failed to discharge.
The February 10, 1997 Certification of the Bais City, Negros Oriental Civil
Registrar[57] which therein quotes entries on the facts of birth appear[ing] in our
Registry of Births on page 99 of book number 32 shows that Monaliza was born on
October 30, 1982 to Nena Rebuya and Rolando Mendoza. This does not, however,
clearly prove with moral certainty the father-daughter relationship as the name of
Monalizas father as indicated in the Certification is Rolando Mendoza and not
Rolando Mendoza, Jr.
237
The concurrence of the minority of the victim and her relationship to the offender Republic of the Philippines
constitutes one special qualifying circumstance which must be both alleged and SUPREME COURT
Manila
proved with certainty, otherwise, the death penalty cannot be imposed.[58]
Regarding the amount of damages awarded by the trial court, the same calls for
EN BANC
modification too.
The trial court failed to award to Monaliza civil indemnity which is automatically
G.R. No. L-7094 March 29, 1912
imposed upon finding of the commission of rape.[59] Since the death penalty is not
imposed, appellant is liable to pay civil indemnity in the amount of P50,000.00 for
THE UNITED STATES, plaintiff-appellee,
each count.[60]
vs.
As for moral damages, also for each count of rape, the amount of P50,000.00 is HILARIO DE LA CRUZ, defendant-appellant.
awarded without need of proving the basis thereof because it is assumed that the
victim suffered moral injuries entitling her to such an award.[61] F.C. Fisher for appellant.
Finally, on the award by the trial court of unspecified amount of exemplary Acting Attorney-General Harvey for appellee.
damages: In criminal offenses, exemplary damages may be imposed when the crime
was committed with one or more aggravating circumstances. [62] As priorly CARSON, J.:
discussed, however, the prosecution failed to establish with moral certainty the
aggravating circumstance of relationship between appellant and Monaliza. The guilt of the defendant and appellant of the crime of homicide of which he was
WHEREFORE, the joint decision of Branch 45 of the Regional Trial Court of Bais City convicted in the court below is conclusively established by the evidenced of record.
in Criminal Cases Nos. 96-074-B and 96-075-B finding accused-appellant, Rolando
Mendoza, Jr. y De la Cruz,[63] guilty of two (2) counts of qualified rape and The trial court was of opinion that its commission was not marked by either
sentencing him in each to suffer the penalty of death and to pay the victim moral aggravating or extenuating circumstances, and sentenced the convict to fourteen
damages in the amount of P50,000.00 and an unspecified amount of exemplary years eight months and one day of reclusion temporal, the medium degree of the
penalty prescribed by the code. Burt we are of opinion that the extenuating
damages is hereby MODIFIED in light of the foregoing discussions. circumstance set out in subsection 7 of article 9 should have been taken into
As modified, appellant is hereby found guilty beyond reasonable doubt of two (2) consideration, and that the prescribed penalty should have been imposed in its
counts of simple rape and he is sentenced to suffer in each the penalty of reclusion minimum degree. Subsection 7 of article 9 is as follows:
perpetua. He is also ordered to pay the victim, Monaliza Mendoza, in each case, the
amount of P50,000.00 as civil indemnity, and the amount of P50,000.00 as moral The following are extenuating circumstances:
damages.
Costs against appellant. xxx xxx xxx
SO ORDERED.
That of having acted upon an impulse so powerful as naturally to have
produced passion and obfuscation.

The evidence clearly discloses that the convict, in the heat of passion, killed the
deceased, who had theretofore been his querida (concubine or lover) upon
discovering her in flagrante in carnal communication with a mutual acquaintance. We
think that under the circumstances the convict was entitled to have this fact taken into
consideration in extenuation of his offense under the provisions of the above-cited
article.

This was the view taken by the Court of Spain upon a similar state of facts as set forth
in its sentence of July 4, 1892, which is summarized by Viada (p. 69, in question 19,
art. 9 of vol. 6) as follows:

238
 Shall he who kills a woman with whom he is living in concubinage for having Modified by a finding that the commission of the crime was marked with the
caught her in her underclothes with another party and afterwards shoots extenuating circumstance set out in subsection 7 of article 9, and by the reduction of
himself, inflicting a serious wound, be responsible for that crime with the the penalty of fourteen years eight months and one day of reclusion temporal to
extenuating circumstance of having acted with violent passion and twelve years and one day of reclusion temporal, the judgment of conviction and the
obfuscation? The Audiencia of Santiago de Cuba did not so hold and its sentence imposed by the trial court should be and are hereby affirmed, with the costs
judgment was reversed by the supreme court for the improper disregard of of this instance against the appellant.
article 9, number 8, of the Penal Code for Cuba and Puerto Rico: "The facts
held to be true by the trial court, and which were the immediate cause of the Arellano, C.J., Torres, Johnson and Trent, JJ., concur.
crime by producing in the accused strong emotion which impelled him to the
criminal act and even to attempt his own life, were a sufficient impulse in the
natural and ordinary course to produce the violent passion and obfuscation
which the law regards as a special reason for extenuation, and as the
judgment did not take into consideration the 8th circumstance of article 9 of
the code, the Audiencia rendering it seems to have violated this legal Separate Opinions
provision."
MORELAND, J., concurring:
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the
"causes which mitigate the criminal responsibility for the loss of self-control are such I agree except as to the application of the extenuating circumstance presented by
as originate from legitimate feelings, not those which arise from vicious, unworthy, paragraph 7, article 9, Penal Code. In my judgment it is not warranted by the facts or
and immoral passions," and declined to give the benefit of the provisions of this article the law.
to the convict in that case on the ground that the alleged causes for his loss of self-
control did not "originate from legitimate feelings." But in that case we found as facts
that:

All the foregoing circumstances conclusively prove that the accused,

deliberately and after due reflection had resolved to kill the woman who had
left him for another man, and in order to accomplish his perverse intention
with safety, notwithstanding the fact that he was already provided with a
clean and well-prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be in a
proper manner, disguising his intention and calming her by his apparent
repose and tranquility, doubtless in order to successfully accomplish his
criminal design, behaving himself properly as he had planned to do
beforehand.

In the former case the cause alleged "passion and obfuscation" of the aggressor was
the convict's vexation, disappointment and deliberate anger engendered by the
refusal of the woman to continue to live in illicit relations with him, which she had a
perfect right to do; his reason for killing her being merely that he had elected to leave
him and with his full knowledge to go and live with another man. In the present case
however, the impulse upon which defendant acted and which naturally "produced
passion and obfuscation" was not that the woman declined to have illicit relations with
him, but the sudden revelation that she was untrue to him, and his discovery of her in
flagrante in the arms of another. As said by the supreme court of Spain in the above-
cited decision, this was a "sufficient impulse" in the ordinary and natural course of
things to produce the passion and obfuscation which the law declares to be one of the
extenuating circumstances to be taken into consideration by the court.

239